Conditions of the Obligations of the Underwriters Sample Clauses: 6k Samples

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters under this Agreement shall be subject to the accuracy of the representations and warranties on the part of the Company herein set forth as of the date hereof and as of each Closing Date, to the accuracy of the statements of the Company's officers made pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder, and to the following additional conditions, unless waived in writing by the Representatives: (a) The Registration Statement shall have been declared effective by the Commission not later than 5:30 p.m., Washington, D.C. time, on the date of this Agreement, or such later time and date as shall have been consented to by the Representatives, which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued by the Commission or any state securities commission nor, to the knowledge of the Company, shall any proceedings for that purpose have been instituted or threatened; and any request of the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faith. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives shall have received opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set fo

Appears in 1 contract

Sources: Underwriting Agreement (Smith a O Corp)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of KBNA and the ~~Company herein set forth as of the date hereof and as of each Closing Date~~Depositor herein, to the accuracy of the written statements of officers of KBNA and the ~~Company's officers~~ Depositor made pursuant to the provisions ~~hereof~~of this Section, to the performance ~~in all material respects~~ by KBNA and the ~~Company~~ Depositor of ~~its~~ their obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) ~~The Registration Statement~~ If the Effective Time is not prior to the execution and delivery of this Agreement, the Effective Time shall have ~~been declared effective by the Commission~~ occurred not later than ~~5:30~~ 6:00 p.m., ~~Washington, D.C.~~ New York City time, on the date of this ~~Agreement,~~ Agreement or such later time ~~and~~ or date as shall have been consented to by the ~~Representatives~~Representative. (b) If the Effective Time is prior to the execution and delivery of this Agreement, ~~which consent shall be deemed to have been given if~~ the ~~Registration Statement~~ Prospectus and any supplements thereto shall have been ~~declared effective on or before~~ filed with the ~~date~~ Commission in accordance with the Rules and ~~time requested in~~ Regulations and Section 5(a) hereof. Prior to the ~~acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made;~~ Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Seller or the Representative, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) The Representative shall have received a letter, dated on or prior to the Closing Date of [____] on behalf of KBNA confirming that such accountants are independent public accountants within the meaning of the Act and the applicable published Rules and Regulations thereunder, and substantially in the form of the drafts to which the Representative has previously agreed and otherwise in form and substance reasonably satisfactory to the Representative and its counsel. (d) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred (i) any ~~change or development involving~~change, or ~~which could be reasonably expected to involve~~any development involving a prospective change, ~~a Material Adverse Effect~~in or affecting particularly the business or properties of the Trust, ~~whether~~ KBNA or ~~not arising from transactions~~ KeyCorp which, in the ~~ordinary course~~ judgment of ~~business~~the Representative, ~~and~~ materially impairs the investment quality of the Notes or makes it impractical or inadvisable to market the Notes; (ii) any downgrading in the ~~Company shall not have sustained~~ rating of any ~~loss~~ debt securities of KBNA or ~~interference from~~ KeyCorp by any ~~labor dispute~~“nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act), ~~strike~~or any public announcement that any such organization has under surveillance or review its rating of any debt securities of KBNA or KeyCorp (other than an announcement with positive implications of a possible upgrading, ~~fire~~and no implication of a possible downgrading, ~~flood~~of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, ~~windstorm~~or any setting of minimum prices for trading on such exchange; (iv) any suspension of trading of any securities of KBNA or KeyCorp on any exchange or in the over-the-counter market; (v) any banking moratorium declared by Federal or New York authorities; or (vi) any outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, ~~accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect,~~ if the effect of ~~which on the Company, in~~ any such ~~case described~~ event specified in this clause (ivi) ~~or (ii) above, is~~ in the ~~reasonable and good faith opinion~~ judgment of the ~~Representatives so material and adverse as to make~~ Representative makes it impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Shares~~ Notes on the terms and in the manner contemplated in the ~~Registration Statement and the~~ Prospectus. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives shall have received opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The ~~Representatives~~ Representative shall have received an opinion of ~~Michael Best & Friedrich LLP~~▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., Deputy General Counsel and Senior Vice President of KBNA, as counsel for (i) KBNA, as the Seller, the Master Servicer and the Administrator and (ii) the Depositor, dated the Closing Date, in the form attached hereto as Exhibit A, or as is otherwise satisfactory in form and substance to the Representative and its counsel. (f) The Representative shall have received one or more opinions of ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP, counsel to the Depositor and the Seller, dated the Closing Date, in the form attached hereto as Exhibit B, or as is otherwise satisfactory in form and substance to the Representative and its counsel, regarding certain true sale, bankruptcy, insolvency and perfection of security interest matters regarding the Seller, the Depositor and the Trust. (g) [Reserved]. (h) [Reserved]. (i) The Representative shall have received an opinion addressed to the several Underwriters of ▇▇▇▇▇▇▇▇ ▇~~ters~~▇▇▇ LLP, in its capacity as Federal tax and ERISA counsel for the Trust, to the effect that the statements in the Prospectus under the headings “Summary of Terms—Tax Status” and “Federal Tax Consequences for Trusts in which all Certificates are Retained by the Seller, the Depositor or a Third Party Originator” accurately describe the material Federal income tax consequences to holders of the Notes, and the statements in the Prospectus under the headings “Summary of Terms—ERISA Considerations” and “ERISA Considerations” to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, have been prepared or reviewed by such counsel and accurately describe the material consequences to holders of the Notes under ERISA. ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP, in its capacity as special counsel to the Trust, shall have delivered an opinion with respect to the characterization of the transfer of the Initial Financed Student Loans. (j) The Representative shall have received an opinion addressed to the several Underwriters of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, in its capacity as special counsel to the several Underwriters, dated the ~~First Closing Date or the Second~~ Closing Date~~, as the case may be~~, with respect to the ~~sale~~ validity of the ~~Shares hereunder, the Registration Statement~~ Notes and such other related matters as the ~~Representatives may~~ Representative shall reasonably ~~require,~~ require and each of KBNA and the ~~Company~~ Depositor shall have furnished or caused to be furnished to such counsel such documents ~~and shall have exhibited to them such papers and records~~ as ~~such counsel~~ they may reasonably request for the purpose of enabling them to pass upon such matters. (fk) The ~~Representatives~~ Representative shall have received ~~on each Closing Date, a certificate~~ an opinion of ~~Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇~~the law offices of ▇▇▇▇ ▇▇▇▇~~sel and Secretary~~, of special student loan counsel to the ~~Company~~Representative and, in ~~their respective capacities as such~~the case of clause (iii) below, special student loan counsel to the Eligible Lender Trustee, dated the Closing Date, satisfactory in form and substance to the Representative, to the effect that: (i) ~~The representations~~ the agreements implementing the Programs, (including the Coordination Agreements) and ~~warranties of~~ the ~~Company set forth~~ Relevant Documents (as defined in ~~Section 2 hereof are true and correct as of the date of this Agreement and as of the date of~~ such ~~certificate~~opinion), and the ~~Company has complied~~ transactions contemplated by the Relevant Documents, conform in all material respects to the applicable requirements of the Higher Education Act, and that, upon the due authorization, execution and delivery of the Relevant Documents and the consummation of such transactions, the Financed Federal Loans, legal title to which will be held by the Eligible Lender Trustee on behalf of the Trust, will qualify, subject to compliance with all ~~the agreements~~ applicable origination and ~~satisfied~~ servicing requirements, for all ~~the conditions to be performed or satisfied by it at or prior to the date of such certificate~~applicable federal assistance payments, including federal reinsurance and federal interest subsidies and special allowance payments; (ii) ~~The Commission~~ such counsel has ~~not issued an order preventing or suspending~~ examined the ~~use of~~ Prospectus, and nothing has come to such counsel’s attention that would lead such counsel to believe that, solely with respect to the ~~Prospectus or any Preliminary~~ Higher Education Act and the student loan business, the Prospectus or any amendment or supplement ~~thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge~~ thereto as of the respective ~~signatories~~dates thereof or on the Closing Date contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein not misleading; and (iii) the Eligible Lender Trustee is an “eligible lender” as such term is defined in Section 435(d) of the Higher Education Act for purposes of holding legal title to the Financed Federal Loans. [(l) The Representative shall have received an opinion of counsel to PHEAA, ~~no proceedings for that purpose have~~ in its capacity as Sub-Servicer and as Guarantor, dated the Closing Date and satisfactory in form and substance to the Representative and its counsel, to the effect that: (i) PHEAA has been ~~initiated or are pending~~ duly organized and is validly existing as an agency of the Commonwealth of Pennsylvania in good standing under the ~~Act or~~ laws thereof with full power and authority (corporate and other) to own its properties and conduct its business, as presently conducted by it, and to enter into and perform its obligations under the ~~Blue Sky Laws~~ PHEAA Sub-Servicing Agreements and the Guarantee Agreement (and the agreements with the Department under Section 428 of the Higher Education Act to the extent relevant to PHEAA’s obligations under such Guarantee Agreement) to which it is a party, and had at all relevant times, and now has, the power, authority and legal right to service the Financed Student Loans it is servicing, to guarantee the Financed Federal Loans covered by such Guarantee Agreement and to receive, subject to compliance with all applicable conditions, restrictions and limitations of the Higher Education Act, reinsurance payments from the Department with respect to claims paid by it on such Financed Federal Loans. (ii) PHEAA is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals in each jurisdiction in which failure to qualify or to obtain such license or approval would render any ~~jurisdiction;~~Financed Student Loan or PHEAA’s obligation under its Guarantee Agreement unenforceable by or on behalf of the Trust. (iii) Each of the ~~respective signatories has examined the Registration Statement~~ PHEAA Sub-Servicing Agreements and the ~~Prospectus~~Guarantee Agreement (and the agreements with the Department under Section 428 of the Higher Education Act to the extent relevant to PHEAA’s obligations under such Guarantee Agreement) to which PHEAA is a party has been duly authorized, executed and delivered by PHEAA and is the legal, valid and binding obligation of PHEAA enforceable against PHEAA in accordance with its terms, notwithstanding the existence of any doctrine of sovereign immunity except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights, and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any ~~amendment~~ proceeding therefor may be brought. (iv) Neither the execution and delivery by PHEAA of the PHEAA Sub-Servicing Agreements or ~~supplement thereto~~the Guarantee Agreement to which it is a party, ~~including~~ nor the consummation by PHEAA of the transactions contemplated therein nor the fulfillment of the terms thereof by PHEAA will conflict with, result in a breach, violation or acceleration of, or constitute a default under, any ~~documents filed~~ term or provision of PHEAA's authorizing legislation or by-laws of PHEAA or of any indenture or other agreement or instrument to which PHEAA is a party or by which PHEAA is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to PHEAA of any court, regulatory body, administrative agency or governmental body having jurisdiction over PHEAA. (v) There are no actions, proceedings or investigations pending or, to the best of such counsel’s knowledge after due inquiry, threatened against PHEAA before or by any governmental authority that might materially and adversely affect the performance by PHEAA of its obligations under, or the validity or enforceability of, the PHEAA Sub-Servicing Agreements or the Guarantee Agreement (or the agreements with the Department under Section 428 of the ~~Exchange~~ Higher Education Act to the extent relevant to PHEAA’s obligations under such Guarantee Agreement) to which it is a party. (vi) Nothing has come to such counsel’s attention that would lead such counsel to believe that the representations and ~~deemed to be incorporated by reference~~ warranties of PHEAA contained in the ~~Registration Statement, and such documents contain all statements of material fact required to be~~ PHEAA Sub-Servicing Agreements are other than as stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set fo.

Appears in 1 contract

Sources: Note Underwriting Agreement (Key Consumer Receivables LLC)

Appears in 1 contract

Sources: Underwriting Agreement (Ford Credit Auto Receivables Corp)

Conditions of the Obligations of the Underwriters. The ------------------------------------------------- obligations of the several Underwriters ~~under this Agreement~~ to purchase and pay for the Firm Common Shares on the First Closing Date and the Optional Common Shares on the Second Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company herein set forth as of the date hereof and as of ~~each~~ the First Closing Date or the Second Closing Date, as the case may be, to the accuracy of the statements of ~~the Company's~~ Company officers made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company of its obligations hereunder, and to the following additional conditions~~, unless waived in writing by the Representatives~~: (a) The Registration Statement shall have ~~been declared~~ become effective ~~by the Commission~~ not later than ~~5:30 p.m.~~5:00 P.M. (or, in the case of a registration statement filed pursuant to Rule 462(b) of the Rules and Regulations relating to the Common Shares, not later than 10:00 P.M.), Washington, D.C. ~~time~~Time, on the date of this Agreement, or at such later time ~~and date~~ as shall have been consented to by ~~the Representatives, which consent shall be deemed to have been given~~ you; if the ~~Registration Statement~~ filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b) of the Rules and Regulations, the Prospectus shall have been ~~declared effective on or before the date and time requested~~ filed in the ~~acceleration request submitted on behalf~~ manner and within the time period required by Rule 424(b) of the ~~Representatives pursuant~~ Rules and Regulations; and prior to ~~Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made;~~ such Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission~~ and no proceedings for that purpose shall have been instituted or ~~any state securities commission nor~~shall be pending or, to the knowledge of the ~~Company~~Company or you, shall ~~any proceedings for that purpose have been instituted or threatened~~be contemplated by the Commission; and any request of the Commission ~~or any state securities commission~~ for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to ~~the reasonable satisfaction of the Representatives acting in good faith~~your satisfaction. (b) ~~Subsequent to~~ You shall be satisfied that since the ~~execution~~ respective dates as of ~~this Agreement,~~ which information is given in the Registration Statement and Prospectus, (i) there shall not have ~~occurred~~ been any change in the capital stock other than pursuant to the exercise of outstanding options and warrants disclosed in the Prospectus of the Company or ~~development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions~~ any material change in the indebtedness (other than in the ordinary course of business) of the Company, ~~and~~ (ii) except as set forth or contemplated by the ~~Company~~ Registration Statement or the Prospectus, no material verbal or written agreement or other transaction shall have been entered into by the Company, which is not ~~have sustained any~~ in the ordinary course of business or which could result in a material reduction in the future earnings of the Company, (iii) no loss or ~~interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity~~ damage (whether or not insured) to the property of the Company shall have been sustained which materially and adversely affects the condition (financial or ~~from any court~~ otherwise), business, results of operations or prospects of the Company, (iv) no legal or governmental action, ~~order~~ suit or ~~decree having a Material Adverse Effect,~~ proceeding affecting the ~~effect of~~ Company which on is material to the ~~Company, in~~ Company or which affects or may affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any ~~such case described in clause (i) or (ii) above, is~~ material change in the ~~reasonable and good faith opinion~~ condition (financial or otherwise), business, management, results of operations or prospects of the Company which makes it impractical or inadvisable in the judgment of the Representatives ~~so material and adverse as to make it impracticable or inadvisable~~ to proceed with the public offering or purchase the ~~delivery of the~~ Common Shares ~~on the terms and in the manner~~ as contemplated ~~in the Registration Statement and the Prospectus~~hereby. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives There shall have ~~received opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company (as~~ been furnished to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representativesyou, as ~~the representatives~~ Representatives of the Underwriters, on each Closing Date, in form and substance satisfactory to you, except as otherwise expressly provided below: (i) An opinion of Fenwick & West LLP, counsel for the Company, addressed to the Underwriters and dated the First Closing ~~Date~~ Date, or the Second Closing Date, as the case may be, to the effect that: (i1) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of ~~Delaware~~its jurisdiction of incorporation, ~~with~~ is duly qualified to do business as a foreign corporation and is in good standing in all other jurisdictions where the ownership or leasing of properties or the conduct of its business requires such qualification, except for jurisdictions in which the failure to so qualify would not have a material adverse effect on the Company, and has full corporate power and authority to ~~own, lease and operate~~ own its properties and conduct its business as ~~presently conducted and as~~ described in ~~the Prospectus and~~ the Registration Statement; (ii2) The ~~authorized~~ authorized, issued and outstanding capital stock of the Company ~~consists~~ is as set forth under the caption "Capitalization" in the Prospectus and conforms as of ~~60,000,000~~ the date set forth therein and as of the applicable Closing Date as to legal matters in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption "Description of Capital Stock"; all necessary and proper corporate proceedings have been taken in order to authorize validly such authorized Common Stock; all outstanding shares of Common ~~Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share,~~ Stock (including the Firm Common Shares and ~~77,000,000 shares of preferred stock, $1.00 par value per share; (iii~~any Optional Common Shares) ~~The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder~~ have been duly ~~authorized~~ and validly issued, are fully paid and ~~nonassessable (except~~nonassessable, have been issued in compliance with federal and state securities laws, and were not issued in violation of or subject to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, any preemptive rights or other rights to subscribe for or purchase any ~~shares of capital stock~~ securities and conform to the description thereof contained in the Prospectus; without limiting the foregoing, there are no preemptive or other rights to subscribe for or purchase any of the ~~Company and,~~ Common Shares to ~~such counsel's knowledge, no shares of capital stock of~~ be sold by the Company ~~have been issued in violation of such rights~~hereunder; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v3) The certificates ~~for~~ evidencing the Common Shares to be delivered hereunder ~~conform~~ are in ~~all material respects to the requirements of the~~ due and proper form under Delaware ~~General Corporation Law and the rules and regulations of the New York Stock Exchange;~~ law, and when duly countersigned by the Company's transfer ~~agent~~agent and registrar, and delivered to ~~the Representatives~~ you or upon ~~the~~ your order ~~of the Representatives~~ against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Common Shares represented thereby will be duly authorized and validly issued, fully paid and ~~nonassessable~~ nonassessable, will not have been issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities and will conform in all respects to the description thereof contained in the Prospectus; (~~except~~4) Except as disclosed in or specifically contemplated by the Prospectus, to the ~~extent applicable~~best of such counsel's knowledge, ~~as otherwise provided in Section 180.0622(2)(b)~~ there are no outstanding options, warrants or other rights calling for the issuance of, and no commitments, plans or arrangements to issue, any shares of capital stock of the ~~Wisconsin Business Corporation Law, as judicially interpreted)~~Company or any security convertible into or exchangeable for capital stock of the Company; (via) The Registration Statement has become effective under the ~~Act~~ Act, and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set foproceeding

Appears in 1 contract

Sources: Underwriting Agreement (Onsale Inc)

Conditions of the Obligations of the Underwriters. The ------------------------------------------------- obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Certificates will be subject to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of the date hereof and as of each Closing Date~~Bank herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Bank made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Bank of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Prospectus and any supplements thereto shall have been ~~declared effective by~~ filed (if required) with the Commission ~~not later than 5:30 p.m.~~in accor- dance with the Rules and Regulations and Section 1 hereof, ~~Washington~~and prior to the Closing Date, D.C. time, on the date of this Agreement, or such later time and date as shall have been consented to by the Representatives, which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Bank, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or by any authority administering any state securities ~~commission for inclusion of additional information in the Registration Statement,~~ or ~~otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faith~~blue sky law. (b) On or prior to the date of the Prospectus and on or prior to the Closing Date, the Underwriters shall have received a letter or letters, dated as of the date of the Prospectus and as of the Closing Date, respectively, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP, Certified Public Accountants, substantially in the form of the drafts to which the Representative has previously agreed and otherwise in form and substance satisfactory to the Representative and its counsel. (c) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred (i) any ~~change or development involving~~change, or ~~which could be reasonably expected to involve~~any development involving a prospective change, ~~a Material Adverse Effect~~in or affecting particularly the business or properties of the Trust, ~~whether~~ or ~~not arising from transactions~~ the Bank which, in the ~~ordinary course~~ judgment of ~~business~~the Representative, ~~and~~ materially impairs the investment quality of the Certificates or makes it impractical or inadvisable to market the Certificates; (ii) any suspension or limitation on trading in securities generally on the ~~Company shall not have sustained~~ New York Stock Exchange or the National Association of Securities Dealers National Market system, or any ~~loss~~ setting of minimum prices for trading on such exchange or ~~interference from~~ market system; (iii) any ~~labor dispute~~suspension of trading of any securities of BANK ONE CORPORATION on any exchange or in the over-the-counter market which materially impairs the investment quality of the Certificates or makes it impractical or inadvisable to market the Certificates; (iv) any banking moratorium declared by Federal, ~~strike~~Delaware or New York authorities; or (v) any outbreak or escalation of major hostilities or armed conflict, ~~fire~~any declaration of war by Congress, ~~flood~~or any other substantial national or international calamity or emergency if, ~~windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect~~in the judgment of the Representative, the effect of ~~which on the Company, in~~ any such ~~case described in clause (i)~~ outbreak, escalation, declaration, calamity, or ~~(ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make~~ emergency makes it ~~impracticable~~ impractical or inadvisable to proceed with completion of the ~~public offering~~ sale of and payment for the Certificates. (d) At the Closing Date, the Bank shall have furnished to the Representative certificates of a vice president or more senior officer of the Bank as to the accuracy of the representations and warranties of the Bank herein at and as of the Closing Date, as to the performance by the Bank of all of its obligations hereunder to be performed at or prior to such Closing Date, and as to such other matters as the Representative may reasonably request. (e) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Associate General Counsel of the Bank, shall have furnished to the Representative her written opinion, addressed to the Representative and dated the Closing Date, in form and substance satisfactory to the Representative and its counsel, substantially to the effect that: (i) The Bank has been duly organized and is validly existing as a national banking association in good standing under the laws of the United States with full power and authority (corporate and other) to own its properties and conduct its business, as presently owned and conducted by it, and to enter into and perform its obligations under this Agreement, the Transfer and Administration Agreement and the Pooling and Servicing Agreement (collectively referred to in this subsection (e) as the "Agreements"), and the Certificates and had at ---------- all times, and now has, the power, authority and legal right to acquire, own and transfer the Receivables; (ii) The Certificates have been duly authorized, executed and delivered by the Bank and, when duly authenticated by the Trustee in accordance with the terms of the Pooling and Servicing Agreement and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be validly issued and outstanding and entitled to the benefits provided by the Pooling and Servicing Agreement; (iii) Each of the Pooling and Servicing Agreement and the Transfer and Administration Agreement has been duly authorized, executed and delivered by the Bank and constitutes the legal, valid and binding agreement of the Bank enforceable against the Bank in accordance with its terms, subject, as to enforceability, to (A) the effect of bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and other similar laws relating to or affecting the rights and remedies of creditors generally, and (B) the application of principles of equity (regardless of whether considered and applied in a proceeding in equity or at law) and the rights and powers of the FDIC; (iv) This Agreement has been duly authorized, executed and delivered by the Bank; (v) No consent, approval, authorization or order of any governmental agency or body is required for (A) the execution, delivery and performance by the Bank of its obligations under the Agreements or the Certificates, or (B) the issuance or sale of the Certificates, except such as have been obtained under the Act and as may be required under state securities or blue sky laws in connection with the purchase and distribution of the Certificates by the Underwriters and the filing of Uniform Commercial Code financing statements with respect to the Receivables; (vi) To the best knowledge of such counsel, neither the execution and delivery of the ~~Shares on~~ Agreements or the Certificates by the Bank nor the performance by the Bank of the transactions therein contemplated nor the fulfillment of the terms thereof does or will result in any violation of any statute or regulation or any order or decree of any court or governmental authority binding upon the Bank or its property, or conflict with, or result in a breach or violation of any term or provision of, or result in a default under any of the terms and provisions of, the Bank's organizational documents or by- laws or any material indenture, loan agreement or other material agreement to which the Bank is a party or by which the Bank is bound; (vii) To the knowledge of such counsel after due investigation, there are no legal or governmental proceedings pending to which the Bank is a party or to which the Bank is subject which, individually or in the ~~manner~~ aggregate (A) would have a material adverse effect on the ability of the Bank to perform its obligations under the Agreements or the Certificates, (B) assert the invalidity of the Agreements or the Certificates, (C) seek to prevent the issuance, sale or delivery of the Certificates or any of the transactions contemplated by the Agreements or (D) seek to affect adversely the Federal income tax or ERISA attributes of the Certificates described in the Prospectus; (viii) The Registration Statement and the Prospectus (except for the financial statements, financial schedules and other financial and operating data included therein, as to which such counsel expresses no opinion) comply as to form with the Act and the Rules and Regulations; (ix) The Registration Statement has become effective under the Act, and the Prospectus Supplement will be filed with the Commission pursuant to Rule 424(b) thereunder; and (x) Such counsel has not independently verified and is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the information contained in the Registration Statement and Prospectus. Based upon her discussions with the ~~Prospectus. (c) The Representatives shall not~~ Bank, its accountants and others, however, no facts have ~~advised the Company~~ come to its attention that cause her to believe that the ~~Registration Statement or~~ Prospectus (except for the financial statements, financial schedules and other financial and statistical data included therein, as to which such counsel expresses no opinion), contains an any untrue statement of a material fact ~~that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material~~ or omits to state a material fact ~~that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is~~ required to be stated therein or necessary in order to make the statements therein not misleading. (df) The ~~Representatives~~ Representative shall have received ~~opinions of Foley~~ a letter from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ~~Lardner~~▇▇▇▇ LLP, special ~~couns~~counsel for the Bank, to the effect that the Representative may rely on its opinion to ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"), Standard & Poor's Ratings, a division ------- of The ▇▇▇▇▇▇-▇▇▇▇ ~~▇▇r the Company~~ Companies, Inc. (~~as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)~~"Standard & Poor's"), and ~~the Vice President~~Fitch IBCA, ~~General Counsel and Secretary~~ Inc. ("Fitch") with respect to ----------------- ----- certain bank regulatory matters. (g) The Representative shall have received an opinion of ~~the Company (as~~ Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the ~~matters set forth in subsections (iii)~~Bank, ~~(iv), (v), (vii), (x), (xi), (xii) and (xiii)~~ addressed to the ~~Representatives~~Representative, dated the Closing Date and satisfactory in form and substance to the Representative and its counsel, to the effect that the Certificates will be treated as ~~the representatives of~~ indebtedness for Federal income tax purposes and for Delaware income tax purposes. (h) The Representative shall have received from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, ~~and~~ such opinion or opinions, dated the ~~First Closing Date or the Second~~ Closing Date, ~~as the case may be,~~ substantially to the effect that: (i) ~~The Company~~ Each of the Pooling and Servicing Agreement and the Transfer and Administration Agreement (collectively referred to in this subsection (h) as the "Agreements") constitutes the valid and ---------- binding obligation of the Bank, enforceable against the Bank in accordance with its terms, except (x) to the extent that the enforceability thereof may be limited by (a) bankruptcy, insolvency, receivership, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and the rights of creditors of national banking associations as the same may be applied in the event of the bankruptcy, insolvency, receivership, reorganization, moratorium or other similar event in respect of the Bank, (b) general principles of equity (regardless of whether enforceability is ~~validly existing~~ considered in a proceeding at law or in equity) and (c) the qualification that certain of the remedial provisions of the Agreements may be unenforceable in whole or in part, but the inclusion of such provisions does not affect the validity of the Agreements taken as a ~~corporation in good standing under the laws of Delaware~~whole, ~~with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus~~ and the ~~Registration Statement~~Agreements, together with applicable law, contain adequate provisions for the practical realization of the benefits of the security created thereby and (y) such counsel expresses no opinion as to the enforceability of any rights to contribution or indemnification which are violative of public policy underlying any law, rule or regulation; (ii) The ~~authorized capital stock~~ Certificates, when executed and authenticated in accordance with the terms of the ~~Company consists~~ Pooling and Servicing Agreement and delivered to and paid for by the Underwriters pursuant to this Agreement, will be duly and validly issued and outstanding and will be entitled to the benefits of ~~60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share,~~ the Pooling and ~~77,000,000 shares of preferred stock, $1.00 par value per share~~Servicing Agreement; (iii) ~~The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have~~ This Agreement has been duly ~~authorized~~ authorized, executed and ~~validly issued, are fully paid and nonassessable (except, to~~ delivered by the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rightsBank; (iv) ~~The Significant Subsidiary is validly existing as a corporation in good standing~~ Neither the execution, delivery or ~~active status under~~ performance by the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all Bank of the ~~issued~~ Agreements or this Agreement, nor the compliance by the Bank with the terms and ~~outstanding capital stock~~ provisions thereof or hereof, will contravene any provision of ~~the Significant Subsidiary~~any applicable law; (v) Based on such counsel's review of applicable laws, no governmental approval, which has not been obtained or taken and is not in full force and effect, is required to authorize or is required in connection with the execution, delivery or performance of the Agreements by the Bank; (vi) The ~~certificates for~~ Certificates, the ~~Shares~~ Pooling and Servicing Agreement and this Agreement conform in all material respects to the descriptions thereof contained in the Prospectus; (vii) The Pooling and Servicing Agreement is not required to be ~~delivered hereunder conform~~ qualified under the Trust Indenture Act of 1939, as amended, and the Trust is not required to be registered under the 1940 Act; (viii) The statements in the Prospectus under the heading "Certain Legal Aspects of the Receivables", to the extent that they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct in all material respects; and (ix) Each of the Registration Statement, as of its effective date, and the Prospectus, as of its date, appeared on its face to be appropriately responsive in all material respects to the requirements of the ~~Delaware General Corporation Law~~ Act and the ~~rules~~ General Rules and ~~regulations of~~ Regulations under the ~~New York Stock Exchange; and when duly countersigned by the Company's transfer agent~~Act, ~~and delivered~~ except that in each case such counsel expresses no opinion as to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending therein or ~~threatened legal or governmental proceedings that are required to be described in the Registration Statement~~ excluded therefrom or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit exhibits to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and ~~that, although~~ such counsel ~~is not verifying, is not passing upon and~~ does not assume any responsibility for the accuracy, completeness or fairness of the statements contained ~~or incorporated by reference into~~ in the Registration Statement or and the Prospectus. Such opinion shall also state that such counsel has participated in conferences with officers and representatives of the Bank, counsel for the Bank, representatives of the independent accountants of the Bank and the Underwriters at which the contents of the Prospectus and related matters were discussed and, although such counsel need not pass upon, and need not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Prospectus and shall have made no independent check or verification thereof, except for those made under the caption "Certain Legal Aspects of the Receivables" to the extent set forth in paragraph (viii) above, on the basis of the ~~information~~ foregoing, no facts shall have come to such counsel's attention that ~~was developed in the course of the performance of~~ shall have led such ~~services, they have no reason~~ counsel to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus~~, or any amendment or supplement thereto including any document incorporated by reference therein~~, as of its ~~issue date and as of the Closing Date~~date, contained ~~or contains any~~ an untrue statement of a material fact or omitted ~~or omits~~ to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not ~~misleading (provided~~ misleading, except that such counsel need not express no an opinion or belief ~~regarding~~ with respect to the financial ~~statements and related~~ statements, schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information ~~has come to the attention of the attorneys~~ included in such ~~firm who have been involved in the preparation~~ Prospectus or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Dateexcluded therefrom. (ei) ~~The Representatives shall have received an opinion of Michael Best~~ McGuire, Woods, Battle & ~~Friedrich LLP,~~ ▇▇▇▇▇▇~~▇ ▇▇▇~~ , L.L.P., counsel for The Bank of New York, a New York banking corporation ("BONY"), in connection ---- with the ~~▇▇▇▇▇▇▇▇ters~~Agency Agreement, dated as of December 4, 1995, between BONY and the ~~First Closing Date or~~ Trustee (the ~~Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require~~"Agency Agreement"), and counsel for the ~~Company~~ Trustee, ---------------- shall have furnished to ~~such counsel such documents~~ the Representative its written opinion, addressed to the Representative and ~~shall have exhibited to them such papers and records as such counsel reasonably request for~~ dated the ~~purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each~~ Closing Date, ~~a certificate of Kenneth W. Krueger~~in form and substance satisfactory to the Representative and its counsel, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, substantially to the effect that: (i) ~~The representations~~ BONY is a banking corporation duly organized, validly existing and ~~warranties~~ in good standing under the laws of the ~~Company set forth in Section 2 hereof are true~~ State of New York and ~~correct as of~~ has the ~~date of this Agreement~~ corporate power and ~~as of~~ authority to execute, deliver and perform its obligations under the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificateAgency Agreement; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has Certificates have been ~~issued; and~~ duly authenticated by BONY pursuant to the ~~knowledge of~~ Agency Agreement and in accordance with the ~~respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction~~Pooling and Servicing Agreement; (iii) ~~Each~~ The Trustee is a banking corporation duly organized, validly existing and in good standing under the laws of the ~~respective signatories~~ State of Delaware and has ~~examined~~ the ~~Registration Statement~~ corporate power and authority to execute, deliver and perform its obligations under the Pooling and Servicing Agreement; (iv) The Supplement has been duly authorized, executed and delivered by the Trustee, and the ~~Prospectus~~Pooling and Servicing Agreement constitutes a legal, valid and ~~any amendment~~ binding agreement of the Trustee, enforceable against the Trustee in accordance with its terms, except (x) as may be limited by bankruptcy, insolvency, reorganization, moratorium or ~~supplement thereto, including any documents filed under~~ other similar laws relating to or affecting the ~~Exchange Act and deemed to be incorporated by reference~~ rights of creditors generally (as such laws would apply in the ~~Registration Statement~~event of the insolvency, receivership, conservatorship or reorganization of, or other similar occurrence with respect to, the Trustee), (y) that the enforceability of the Pooling and ~~such documents contain all statements of material fact required~~ Servicing Agreement against the Trustee may be subject to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set fot

Appears in 1 contract

Sources: Underwriting Agreement (First Usa Credit Card Master Trust)

Conditions of the Obligations of the Underwriters. The obligations of the ~~several~~ Underwriters ~~under this Agreement shall~~ to purchase and pay for the Class A Notes will be subject to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of the date hereof~~ Seller and ~~as of each Closing Date~~CFSC herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Seller and CFSC made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Seller of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The Registration Statement shall ~~have been declared~~ be effective by at the ~~Commission not later than 5:30 p.m.~~Execution Time, ~~Washington~~and prior to the Closing Date, D.C. time, on the date of this Agreement, or such later time and date as shall have been consented to by the Representatives, which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Seller or the Representatives, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or by any authority administering any state securities ~~commission for inclusion of additional information in the Registration Statement,~~ or ~~otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faith~~blue sky law. (b) The Prospectus and any supplements thereto shall have been filed (if required) with the Commission in accordance with the Rules and Regulations and Section 5(a) hereof. (c) On or prior to the date of this Agreement and on or prior to the Closing Date, the Representatives shall have received a letter or letters, dated as of the date of this Agreement and as of the Closing Date, respectively, of PricewaterhouseCoopers LLP, independent public accountants, substantially in the form of the drafts to which the Representatives have previously agreed and otherwise in form and substance satisfactory to the Representatives and their counsel. (d) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred (i) any ~~change or development involving~~change, or ~~which could be reasonably expected to involve~~any development involving a prospective change, ~~a Material Adverse Effect~~in or affecting particularly the business or properties of the Trust, ~~whether~~ the Seller or ~~not arising from transactions~~ the Servicer which, in the ~~ordinary course~~ judgment of ~~business~~the Underwriters, ~~and~~ materially impairs the investment quality of the Notes or makes it impractical or inadvisable to market the Notes; (ii) any suspension or limitation of trading in securities generally on the ~~Company shall not have sustained~~ New York Stock Exchange or the over-the-counter market, or any ~~loss~~ setting of minimum prices for trading on such exchange, or ~~interference from~~ a material disruption in commercial banking or securities settlement or clearance services in the United States or with respect to Clearstream or Euroclear systems in Europe; (iii) any ~~labor dispute~~suspension of trading of any securities of Caterpillar or CFSC on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by Federal, ~~strike~~Delaware or New York authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, ~~fire~~any declaration of war by Congress, ~~flood~~or any other substantial national or international calamity or emergency if, ~~windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect~~in the judgment of the Underwriters, the effect of ~~which on the Company, in~~ any such ~~case described in clause (i)~~ outbreak, escalation, declaration, calamity or ~~(ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make~~ emergency makes it ~~impracticable~~ impractical or inadvisable to proceed with the ~~public offering or~~ offering, sale of and payment for the ~~delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus~~Notes. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (de) The Representatives shall have received opinions of ~~Foley~~ Kevin Welsh, Senior Corporate Attorney of CFSC, Orrick, Herringto▇ & ~~Lardner~~▇▇▇▇▇▇▇fe LLP and Waller Lansden Dortch & Da▇▇▇, ~~special couns~~▇LL▇, ▇▇▇▇▇▇▇ to ▇▇▇▇, ▇▇e Seller ▇▇▇ ▇▇~~r the Company (as~~ e ▇▇▇▇▇ ▇▇▇ ▇▇▇h o▇▇▇▇ counsel acceptable to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) Underwriters addressed to the Representatives, ~~as the representatives of the Underwriters, and~~ dated the ~~First~~ Closing Date or and satisfactory in form and substance to the ~~Second Closing Date~~Representatives and their counsel, ~~as the case may be,~~ substantially to the effect that: (i) ~~The Company~~ CFSC has been duly incorporated and is validly existing as a corporation in good standing under the laws of ~~Delaware,~~ the State of Delaware with full corporate power and authority to ~~own, lease and operate~~ own its properties and conduct its ~~business~~ business, as presently owned and conducted by it, and ~~as described in~~ to enter into and perform its obligations under the ~~Prospectus~~ Underwriting Agreements, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the ~~Registration Statement;~~Custodial Agreement and had at all times, and now has, the power, authority and legal right to acquire, own and sell the Receivables. (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have Seller has been duly ~~authorized~~ incorporated and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing ~~or active status~~ under the laws of ~~Tennessee,~~ the State of Nevada with full corporate power and authority to ~~own, lease and operate~~ own its properties and to conduct its ~~business~~ business, as presently owned and conducted by it, and ~~as described in~~ to enter into and perform its obligations under the ~~Prospectus~~ Underwriting Agreements, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, the Administration Agreement and the ~~Registration Statement; to such counsel's knowledge~~Custodial Agreement and had at all times, and now has, the ~~Company owns directly~~ power, authority and legal right to acquire, own and sell the Receivables. (iii) CFSC is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals in each jurisdiction in which failure to qualify or ~~indirectly~~ to obtain such license or approval would render any Receivable unenforceable by the Seller, the Owner Trustee or the Indenture Trustee. (iv) The Seller is duly qualified to do business and ~~beneficially~~ is in good standing, and has obtained all of necessary licenses and approvals in each jurisdiction in which failure to qualify or to obtain such license or approval would have a material adverse effect on the ~~issued and outstanding capital stock of the Significant Subsidiary;~~Receivables as a whole. (v) ~~The certificates for~~ When the ~~Shares to be~~ Certificates have been duly executed, authenticated and delivered ~~hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned~~ by the ~~Company's transfer agent,~~ Owner Trustee in accordance with the Trust Agreement and delivered to the ~~Representatives or upon~~ Seller pursuant to the ~~order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this~~ Sale and Servicing Agreement, the ~~Shares represented thereby~~ Certificates will be ~~duly authorized and validly~~ legally issued, fully paid and nonassessable ~~(except,~~ obligations of the Trust and will be entitled to the ~~extent applicable, as otherwise provided in Section 180.0622(2)(b)~~ benefits of the ~~Wisconsin Business Corporation Law, as judicially interpreted);~~Trust Agreement. (vi) ~~The Registration Statement has become effective under~~ When the ~~Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose~~ Notes have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by ~~and~~ the Owner Trustee on behalf of the ~~Company~~Trust, authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to the Underwriting Agreements, the Notes will be duly issued, will constitute legal, valid and binding obligations of the Trust enforceable against the Trust in accordance with their terms and will be entitled to the benefits and security afforded by the Indenture, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) Each of the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, the Administration Agreement and the Custodial Agreement has been duly authorized, executed and delivered by the Seller, and is a legal, valid and binding ~~agreement~~ obligation of the ~~Company~~ Seller enforceable against the ~~Company~~ Seller in accordance with its terms, except ~~that rights to indemnity or contribution hereunder~~ (x) the enforceability thereof may be ~~limited by applicable law and except as~~ subject to ~~enforceability of this Agreement may be limited by~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors' rights ~~generally,~~ and ~~by equitable principles limiting~~ (y) the ~~right to~~ remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (viii) The Underwriting Agreements have been duly authorized, executed and delivered by each of the Seller and CFSC. (ix) Each of the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Custodial Agreement has been duly authorized, executed and delivered by CFSC and is a legal, valid and binding obligation of CFSC enforceable against CFSC in accordance with its terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable ~~relief; and,~~ relief may be subject to ~~such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality~~ equitable defenses and to the discretion of the ~~United States having jurisdiction~~ court before which any proceeding therefor may be brought. (x) Neither the sale, transfer, assignment, set over and conveyance of the ~~Company~~Receivables from CFSC to the Seller, ~~is required for~~ nor the sale, transfer, assignment, set over and conveyance of the Receivables from the Seller to the Trust, nor the grant of a security interest in the Trust Estate by the Trust to the Indenture Trustee, nor the assignment by the Seller of its right, title and interest in the Purchase Agreement to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of ~~this~~ the Underwriting Agreements, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, the Administration Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Custodial Agreement by the ~~Company will not: (A) violate any provisions~~ Seller, nor the execution of the ~~Articles~~ Underwriting Agreements, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement or the Custodial Agreement by CFSC, nor the consummation of ~~Incorporation~~ any transactions contemplated in the Underwriting Agreements, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement, the Sale and Servicing Agreement or ~~Bylaws~~ the Custodial Agreement (such agreements, excluding the Underwriting Agreements, being for purposes of this clause (e) and elsewhere herein, as applicable, collectively, the "Basic Documents"), nor the fulfillment of the ~~Company~~ terms thereof by CFSC, the Seller or the ~~Significant Subsidiary;~~ Trust, as the case may be, will (B1) ~~violate any of the provisions of~~conflict with, or result in ~~the~~ a breach, ~~modification~~ violation or ~~termination~~ acceleration of, or constitute a default under, any ~~agreement~~term or provision of the certificate of incorporation or bylaws of CFSC or the Seller or, ~~lease~~to the best of such counsel's knowledge after due inquiry, ~~franchise, license, indenture, permit, mortgage, deed~~ of ~~trust, other evidence of indebtedness~~ any indenture or other agreement or instrument to which ~~the Company~~ CFSC or the ~~Significant Subsidiary~~ Seller is a party or by which ~~the Company or the Significant Subsidiary, or any~~ either of ~~their respective owned or leased property~~ them is bound, ~~and which is filed or incorporated by reference as an exhibit to the Registration Statement;~~ or (C2) ~~violate~~ result in a violation of or contravene the terms of any statute, ~~ordinance, order, rule, decree~~ order or regulation applicable to CFSC or the Seller of any court, regulatory ~~or governmental~~ body~~, arbitrator~~, administrative agency or ~~other instrumentality of the United States~~ governmental body having jurisdiction over ~~the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws);~~either of them. (xi) To There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge, ~~there are no holders of Common Stock~~ threatened before any court, administrative agency, or other ~~securities~~ tribunal (1) asserting the invalidity of the ~~Company~~Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, or ~~securities~~ (3) that ~~are convertible~~ could reasonably be expected to materially and adversely affect the performance (A) by CFSC of its obligations under, or ~~exchangeable into Common Stock~~ the validity or ~~other securities~~ enforceability of, the Underwriting Agreements, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement or the Custodial Agreement, (B) by the Seller of its obligations under, or the ~~Company~~validity or enforceability of, ~~that have rights to~~ the ~~registration~~ Underwriting Agreements, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement or the Custodial Agreement, or (C) by the Servicer of ~~such securities under~~ its obligations under, or the ~~Act~~ validity or ~~any Blue Sky Laws;~~enforceability of, the Sale and Servicing Agreement. (xii) ~~The Shares are authorized for trading~~ To the best knowledge of such counsel, no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any agreement to which CFSC or the Seller is a party or by which either of them is bound, which default is or would have a material adverse effect on the ~~New York Stock Exchange;~~financial condition, earnings, business or properties of CFSC and its subsidiaries, taken as a whole. (xiii) ~~To such counsel's knowledge~~The Assignment (as defined in the Purchase Agreement) dated as of the Closing Date from CFSC to the Seller has been duly authorized, ~~neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and~~executed and delivered by CFSC. (xiv) ~~The Company is not an "investment company," as such term is defined~~ Should CFSC become the debtor in a case under the Bankruptcy Code, if the matter were properly briefed and presented to a court, the court should hold that (1) the transfer of the Receivables by CFSC to the Seller in the ~~Investment Company Act~~ manner set forth in the Purchase Agreement would constitute an absolute sale of ~~1940~~the Receivables, ~~as amended.~~ rather than a borrowing by CFSC secured by the Receivables, and thus (2) the Seller's rights to the Receivables would not be impaired by the operation of Section 362(a) of the Bankruptcy Code. (xv) Should CFSC become the debtor in a case under the Bankruptcy Code, and the Seller would not otherwise properly be a debtor in a case under the Bankruptcy Code, and if the matter were properly briefed and presented to a court exercising bankruptcy jurisdiction, the court, exercising reasonable judgment after full consideration of all relevant factors, would not order, over the objection of the Certificateholders or the Noteholders, the substantive consolidation of the assets and liabilities of the Seller with those of CFSC based on any legal theories currently subscribed to by federal courts exercising bankruptcy jurisdiction. (xvi) Such counsel ~~shall also state that they have participated in conferences~~ is familiar with ~~officers and other representatives~~ the Servicer's standard operating procedures relating to the Servicer's acquisition of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed a perfected first priority security interest in the equipment financed by the Servicer pursuant to equipment installment sale contracts in the ordinary course of the ~~performance~~ Servicer's business. Assuming that the Servicer's standard procedures have been followed with respect to the perfection of security interests in the Financed Equipment (and such ~~services, they have~~ counsel has no reason to believe that such procedures have not been followed), the ~~Registration Statement including~~ Servicer has acquired or will acquire a perfected first priority security interest in the Financed Equipment. (xvii) The Purchase Agreement grants to the Seller a valid security interest in CFSC's rights in the Receivables and the proceeds thereof. The Sale and Servicing Agreement grants to the Trust a valid security interest in the Seller's rights in the Receivables and the proceeds thereof. The Indenture grants to the Indenture Trustee a valid security interest in the Trust's rights in the Receivables and the proceeds thereof. (xviii) The Receivables are chattel paper as defined in the Uniform Commercial Code (the "UCC"). (xix) Immediately prior to the transfer of the Receivables and the proceeds thereof to the Trust, the Seller had a first priority perfected security interest in the Receivables and the proceeds thereof. Immediately prior to the transfer of the Receivables and the proceeds thereof to the Indenture Trustee, the Trust had a first priority perfected security interest in the Receivables and the proceeds thereof. The Indenture Trustee has a first priority perfected security interest in the Receivables and the proceeds thereof. The opinion covered by this paragraph (xix) shall be subject to customary UCC exceptions and qualifications. (xx) The statements in the Prospectus under the headings "Risk Factors--The notes may suffer losses if the interests of other persons in the receivables are superior to the trust's interest" and "Certain Legal Aspects of the Receivables" to the extent they constitute matters of law or legal conclusions with respect thereto, are correct in all material respects. (xxi) The statements contained in the Prospectus and any ~~document incorporated by reference~~ supplement thereto under the headings "Description of the Notes," "Description of the Certificates" and "Description of the Transfer and Servicing Agreements," insofar as such statements constitute a summary of the Notes, the Certificates, the Indenture, the Administration Agreement, the Sale and Servicing Agreement, the Purchase Agreement and the Trust Agreement, are a fair and accurate summary of the matters referred to therein. (xxii) No consent, ~~on its effective date~~approval, ~~contained~~ authorization or order of, or filing with, any ~~untrue statement~~ court or governmental agency or body is required for the consummation of ~~material fact~~ the transactions contemplated in the Basic Documents, except for such filings with respect to the transfer of the Receivables to the Seller pursuant to the Purchase Agreement and the transfer of the Receivables to the Trust pursuant to the Sale and Servicing Agreement and as may be required under state securities or ~~omitted or omits to state any material fact~~ Blue Sky laws of various jurisdictions. (xxiii) All actions required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date taken and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated all filings required to be ~~based upon such counsel's knowledge or to be given "to~~ made under the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect Act prior to the sale of the ~~Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall~~ Notes have ~~furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters~~been duly taken or made. (fxxiv) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Trust Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has is not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be ~~stated therein,~~ qualified under the Trust Indenture Act and do the Trust is not ~~include any untrue statement of a material fact or omit to state any material fact~~ required to be ~~stated therein or necessary to make~~ registered under the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set foInvestment Company

Appears in 1 contract

Sources: Underwriting Agreement (Caterpillar Financial Asset Trust 2004-A)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall be~~ to purchase and pay for the Firm Securities on the Closing Date and the Option Securities on any Option Closing Date are subject to the ~~accuracy~~ fulfillment of each of the ~~representations~~ following conditions on or prior to the Closing Date and ~~warranties on the part of the Company herein set forth as of the date hereof and as of~~ each Option Closing Date, to the accuracy of the statements of the Company's officers made pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder, and to the following additional conditions, unless waived in writing by the Representatives: (a) All the representations and warranties of the Offerors contained in this Agreement and in any certificate delivered hereunder shall be true and correct on the Closing Date and the Option Closing Date with the same force and effect as if made on and as of the Closing Date or Option Closing Date, as applicable, except for any such representations and warranties made as of a specified date, which shall be true and correct as of such date. The Offerors shall not have failed at or prior to the Closing Date or Option Closing Date, as applicable, to perform or comply in all respects with any of the agreements herein contained and required to be performed or complied with by them at or prior to the Closing Date or Option Closing Date, as applicable. (b) If the Registration Statement is not effective at the time of the execution and delivery of this Agreement, the Registration Statement shall have ~~been declared~~ become effective by (or, if a post-effective amendment is required to be filed pursuant to Rule 430A under the ~~Commission~~ Act, such post-effective amendment shall have become effective) not later than ~~5:30 p.m.~~4:30 P.M., ~~Washington, D.C.~~ Chicago time, on the date immediately following the date of this ~~Agreement,~~ Agreement or such later time ~~and date~~ as ~~shall have been consented to by the Representatives~~you may approve in writing or, ~~which consent shall be deemed to have been given~~ if the Registration Statement has been declared effective prior to the execution and delivery hereof in reliance on Rule 430A, the Prospectus shall have been ~~declared effective on or before~~ filed as required hereby, if necessary; and at the ~~date~~ Closing Date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; each applicable Option Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor, to the knowledge of the Company, shall any~~ and no proceedings for that purpose shall have been ~~instituted~~ commenced or ~~threatened;~~ shall be pending before or, to the best knowledge of the Underwriters and ~~any~~ the Offerors, threatened by the Commission. Every request for additional information on the part of the Commission ~~or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise,~~ shall have been complied with to the ~~reasonable satisfaction~~ Underwriters' satisfaction. No stop order suspending the sale of the ~~Representatives acting~~ Securities in ~~good faith~~any jurisdiction referred to in Section 5(g) shall have been issued, and no proceeding for that purpose shall have been commenced or shall be pending or threatened. (bc) The Securities shall have been qualified for sale, if required, under the blue sky laws of such states as shall have been specified by you. (d) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred any ~~change or development involving~~material change, or ~~which could be reasonably expected to involve~~any material development involving a prospective change, ~~a Material Adverse Effect~~in or affecting particularly the business or properties of the Offerors or the Subsidiaries, whether or not arising ~~from transactions~~ in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Companythat, in ~~any such case described in clause (i) or (ii) above~~your judgment, ~~is in the reasonable and good faith opinion of the Representatives so material and adverse as to make~~ makes it ~~impracticable~~ impractical or inadvisable to proceed with the public offering or ~~the delivery~~ purchase of the ~~Shares on the terms and in the manner~~ Securities as contemplated ~~in the Registration Statement and the Prospectus~~hereby. (ce) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives You shall have received ~~opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company~~ an opinion (as satisfactory to ~~the matters set forth below in subsections (i), (ii), (vi), (viii), (ix~~you and your counsel) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the ~~First~~ Closing Date or the ~~Second~~ Option Closing Date, as the case may be, of ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Offerors, to the effect that: (i) The Company has been duly organized and is a validly existing ~~as a~~ corporation in good standing under the laws of ~~Delaware~~Illinois. Each of Barrington Bank and Trust Company, ~~with full corporate~~ N.A. and Crystal Lake Bank and Trust Company, N.A. is validly existing as a national banking association in good standing under the federal laws of the United States. Each of the other Subsidiaries is validly existing as a bank or other entity in good standing under the laws under which it was organized. Each of the Company and the Subsidiaries has all necessary power and ~~authority~~ authority, corporate or otherwise, to own, lease and operate ~~its~~ their respective properties and assets and to conduct ~~its business as presently conducted and~~ their respective businesses as described in the ~~Prospectus~~ Registration Statement and the ~~Registration Statement;~~Prospectus, and FIFC is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction in which its ownership or lease or real property or the conduct of its business makes such qualification necessary and in which the failure to so qualify could have a Material Adverse Effect. (ii) The ~~authorized capital stock~~ Company has all necessary power and authority, corporate, trust or otherwise, to enter into and perform this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement, as applicable, and to effect the transactions contemplated hereby or thereby. The performance of the ~~Company consists~~ Company's respective obligations hereunder and under the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement, as applicable, have been duly authorized by all necessary action. This Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement and the Expense Agreement have been duly executed and delivered by and on behalf of ~~60,000,000 shares~~ the Company, and, assuming due authorization, execution and delivery of ~~Common Stock~~such agreements by the other parties thereto, ~~par value $1.00 per share~~constitute legal, ~~14,000,000 shares~~ valid and binding agreements of ~~Class A common stock~~the Company, ~~par value $5.00 per share~~enforceable in accordance with their respective terms, except as enforceability of the same may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws of general applicability relating to or affecting creditors' rights generally and ~~77,000,000 shares~~ by general equity principles. No approval, consent, order, authorization, designation, declaration or filing by or with any regulatory, administrative or other governmental body or, to the best of ~~preferred stock~~such counsel's knowledge, ~~$1.00 par value per share;~~third party, is necessary in connection with the execution and delivery of this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement or the Expense Agreement and the consummation of the transactions contemplated herein or therein or as contemplated by the Prospectus (other than as may be required by the Trust Indenture Act, the NASD or as required by state securities or blue sky laws, as to which such counsel need express no opinion) except such as have been obtained or made, with counsel specifying the same. (iii) The ~~issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued~~authorized, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the ~~Significant Subsidiary;~~Company is as set forth in the Prospectus under "Capitalization." (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (viiv) The Registration Statement has become effective under the ~~Act and~~Act, the Prospectus has been filed as required by this Agreement, if necessary, and to the best of such counsel's knowledge: (a) after telephonic inquiry of the Commission, no stop order suspending the effectiveness of the Registration Statement has been ~~issued~~ issued, and (b) no proceedings for that purpose are pending or have been ~~instituted~~ initiated or ~~are~~ threatened by the Commission; . The Registration Statement (including the information deemed to be part of the Registration Statement ~~and~~ at the time of effectiveness pursuant to Rule 430A, if applicable), the Prospectus and ~~any~~ each amendment or supplement ~~thereto, including any document incorporated by reference into the Registration Statement~~ thereto (except for the financial statements ~~and schedules~~ and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the ~~Act;~~ Act and the ~~conditions for use of Form S-3, set forth~~ Rules and Regulations. (v) The descriptions in the ~~General Instructions thereto~~Registration Statement and Prospectus of contracts, ~~have been satisfied; (vii) To~~ instruments and other documents filed as exhibits to the Registration Statement are accurate in all material respects, and such ~~counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are~~ counsel does not know of any Proceedings required to be described in the ~~Registration Statement or the~~ Prospectus that are not so described, ~~nor, to such counsel's knowledge, is there~~ or of any ~~transaction, relationship, agreement, contract~~ contracts or ~~other document~~ documents of a character required to be described in the Registration Statement or the ~~Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein,~~ Prospectus or to be filed as ~~an exhibit~~ exhibits to ~~or incorporated by reference in~~ the Registration Statement ~~by the Act, which is~~ that were not ~~described,~~ described and filed ~~or incorporated by reference~~ as required;. (~~viii~~vi) ~~Statements set forth in~~ Neither the ~~Prospectus under the heading "Description~~ filing of ~~Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in~~ the Registration Statement ~~under Item 15 insofar as such statements constitute a summary of the legal matters, documents~~ or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any ~~court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for~~ amendment nor the execution and ~~delivery~~ performance of this Agreement, the Indenture, the Trust Agreement, the Guarantee Agreement or the Expense Agreement, nor the consummation of the transactions contemplated ~~by this Agreement (except for compliance with the Act~~herein or therein, ~~the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company~~ will ~~not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate~~ contravene any of the provisions of, or result in a default under (nor, to the ~~breach~~best of such counsel's knowledge, ~~modification~~ has any event occurred which with notice or ~~termination of~~lapse of time, or both, would constitute a breach or default under), the Revolving Loan Agreement with LaSalle National Bank, as amended through the date hereof, or any ~~agreement~~other material contract, ~~lease~~filed by the Company with the Commission, ~~franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument~~ to which the Company ~~or the Significant Subsidiary~~ is a party or by which their property is bound (except for such contravention or default which its not have a Material Adverse Effect), or violate any of the provisions of the charter or by-laws of the Company or the ~~Significant Subsidiary~~Certificate of Trust of the Trust, or violate any Laws known to such counsel. (vii) Neither the Trust, the Company nor any Subsidiary is an "investment company" or a company controlled by an "investment company" within the meaning of ~~their respective owned or leased property is bound~~the Investment Company Act. (viii) The statements in the Prospectus under the caption "Description of the Trust Preferred Securities," "Description of the Subordinated Debentures," "Description of the Guarantee" and "Relationship among the Trust Preferred Securities, the Subordinated Debentures and ~~which is filed or incorporated by reference~~ the Guarantee," insofar as ~~an exhibit~~ such statements constitute matters of law applicable to the ~~Registration Statement;~~ Offerors or summaries of documents, fairly present the information required to be included therein in all material respects. (Cix) ~~violate any statute~~All of the issued and outstanding Common Securities of the Trust are owned by the Company, ~~ordinance, order, rule, decree or regulation~~ free and clear of any ~~court~~security interest, ~~regulatory~~ mortgage, pledge, lien, encumbrance, claim or ~~governmental body, arbitrator, administrative agency or other instrumentality~~ equitable right. (x) Each of the ~~United States having jurisdiction over~~ Indenture and the ~~Company or~~ Trust Agreement has been duly qualified under the ~~Significant Subsidiary (assuming compliance with all applicable federal and state securities laws);~~Trust Indenture Act. (xi) ~~To such counsel's knowledge~~The Subordinated Debentures are subordinate and junior in right of payment to all Senior Debt, ~~there are no holders of Common Stock or other securities~~ Subordinated Debt and Additional Senior Obligations (each as defined in the Indenture) of the Company~~, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws;~~. (xii) ~~The Shares are authorized for trading on~~ No Tax Event, Capital Treatment Event or Investment Company Event (each as defined in the ~~New York Stock Exchange;~~Indenture) has occurred. (xiii) ~~To such counsel's knowledge~~The statements set forth in the Prospectus under the caption "Certain Federal Income Tax Consequences" constitute a fair and accurate summary of the matters addressed therein, ~~neither~~ based upon current law and the ~~Company nor the Significant Subsidiary is, nor with the giving of notice~~ assumptions stated or ~~passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and~~referred to therein. (xiv) ~~The Company~~ To the best of such counsel's knowledge and information after due inquiry, the Trust is not ~~an "investment company," as such term~~ required to be authorized to do business in any other jurisdiction, and the Trust is ~~defined~~ not a party to or otherwise bound by any agreement other than those described in the ~~Investment Company Act of 1940~~Prospectus. In addition, ~~as amended. Such~~ such counsel shall ~~also~~ state that they have participated in conferences with officers and other representatives of the ~~Company~~Offerors, representatives of ~~auditors for~~ the independent public accountants of the Company and representatives of the Underwriters and their ~~counsel during~~ counsel, at which the ~~content~~ contents of the Registration Statement and the Prospectus and related matters were discussed ~~and reviewed, and that~~and, although such counsel is not ~~verifying~~passing upon, ~~is not passing upon~~ and does not assume any responsibility ~~for~~ for, the accuracy, completeness or fairness of the statements contained ~~or incorporated by reference into~~ in the Registration Statement and the Prospectus (except as set forth above) and has not made any independent check or ~~the Prospectus~~verification thereof, on the basis of the ~~information that was developed in~~ foregoing (relying as to materiality upon the ~~course~~ statements of officers and other representatives of the ~~performance of~~ Company), no facts have come to such ~~services, they have no reason~~ counsel's attention that lead such counsel to believe that either the Registration Statement or any amendment (including any ~~document incorporated by reference therein~~post-effective amendment) thereto at the time such Registration Statement or amendment became effective, ~~on its effective date~~and as of the Closing Date and the Option Closing Date, if any, contained ~~any~~ or contains an untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference thereinmisleading, or that the ~~Prospectus,~~ Prospectus or any amendment or supplement thereto ~~including any document incorporated by reference therein). To the extent that any~~ as of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective ~~capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement~~ dates and as of the ~~date of such certificate,~~ Closing Date and the ~~Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed~~ Option Closing Date, if any, contained or ~~satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued~~ contains an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or ~~omit~~ omitted or omits to state ~~any~~ a material fact required to be stated therein or necessary to make the statements ~~therein~~ therein, in light of the circumstances under which they were made, not misleading, except that such counsel need express no opinion with respect to the financial statements, schedules and ~~since the date on which~~ other financial data included in the Registration Statement ~~was initially filed~~or the Prospectus. (f) You shall have received an opinion (satisfactory to you and your counsel) dated the Closing Date or the Option Closing Date, ~~no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment~~ as the case may be, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, counsel for the Property Trustee under the Trust Agreement, the Indenture Trustee under the Indenture and the Guarantee Trustee under the Guarantee Agreement, and special Delaware counsel to the ~~Registration Statement that~~ Offerors, to the effect that: (i) Wilmington Trust Company is duly incorporated and is validly existing in good standing as a banking corporation under the laws of the State of Delaware. (ii) Wilmington Trust Company has the power and authority to execute, deliver and perform its obligations under the Indenture, the Trust Agreement and the Guarantee Agreement. (iii) Each of the Indenture, the Trust Agreement and the Guarantee Agreement has been duly authorized, executed and delivered by Wilmington Trust Company and constitutes a legal, valid and binding obligation of Wilmington Trust Company, enforceable against it in accordance with its terms. (iv) The execution, delivery and performance by Wilmington Trust Company of the Indenture, the Trust Agreement and the Guarantee Agreement do not conflict with or constitute a breach of the charter or by-laws of Wilmington Trust Company. (v) No consent, approval or authorization of, or registration with or notice to, any governmental authority or agency of the State of Delaware or the United States governing the banking or trust powers of Wilmington Trust Company is required for the execution, delivery or performance by Wilmington Trust Company of the Indenture, the Trust Agreement or the Guarantee Agreement. (vi) The Trust has been ~~so set fo~~duly created and is validly existing in good standing as a business trust under the Delaware Act, and all filings required as of the date hereof under the Delaware Act with respect to the creation and valid existence of the Trust as a business trust have been made. (vii) Under the Trust Agreement and the Delaware Act, the Trust has the trust power and authority to own property and to conduct its business, all as described in the Prospectus. (viii) The Trust Agreement constitutes a valid and binding obligation of the Company and each of the Property Trustee and the Administrative Trustees, and is enforceable against the Company and each of the Property Trustee and the Administrative Trustees in accordance with its terms. (ix) Under the Trust Agreement and the Delaware Act, the Trust has the trust power and authority (A) to execute and deliver, and to perform its obligations under, this Agreement, and (B) to issue, and to perform its obligations under, the Securities and the Common Securities. (x) Under the Trust Agreement and the Delaware Act, the execution and delivery by the Trust of this Agreement, and the performance by it of its obligations hereunder, have been duly authorized by all necessary trust action on the part of the Trust. (xi) The Securities and the Common Securities have been duly authorized by the Trust Agreement and are duly and validly issued and fully paid and non-assessable undivided beneficial interests in the assets of the Trust. The respective holders of the Securities and the Common Securities, as beneficial owners of the Trust, will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. (xii) Under the Trust Agreement and the Delaware Act, the issuance of the Securities and the Common Securities is not subject to preemptive or similar rights. (xiii) The issuance and sale by the Trust of the Securities and the Common Securities, the purchase by the Trust of the Subordinated Debentures, the execution, delivery and p

Appears in 1 contract

Sources: Underwriting Agreement (Wintrust Capital Trust I)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of each of the ~~Company~~ Trust, the Depositor and NMAC herein ~~set forth as of~~ on the date hereof and ~~as of each Closing~~ at the Series 2007-A Issuance Date, to the accuracy of the statements of officers of the ~~Company's officers~~ Trust, the Depositor and NMAC made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Trust, the Depositor and NMAC of ~~its~~ their respective obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) ~~The~~ At the time this Agreement is executed and delivered by the Depositor and at the Series 2007-A Issuance Date, Deloitte & Touche LLP shall have furnished to the Representative letters dated respectively as of the date of this Agreement and as of the Series 2007-A Issuance Date substantially in the forms of the drafts to which the Representative previously agreed. (b) If the time of effectiveness of the Initial Registration Statement is not prior to the execution and delivery of this Agreement, such time of effectiveness shall have ~~been declared effective by the Commission~~ occurred not later than ~~5:30~~ 10:00 p.m., ~~Washington, D.C.~~ New York time, on the date of this ~~Agreement,~~ Agreement or such later ~~time and~~ date as shall have been consented to by the ~~Representatives, which consent shall be deemed to have been given if~~ Representative. If the time of effectiveness of the Initial Registration Statement is prior to the execution and delivery of this Agreement, the Preliminary Prospectus and the Final Prospectus and all amendments and supplements thereto shall have been ~~declared effective~~ filed with the Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement. If the time of effectiveness of the Additional Registration Statement (if any) is not prior to the execution and delivery of this Agreement, such time of effectiveness shall have occurred not later than 10:00 p.m., New York time, on ~~or before~~ the date of this Agreement or, if earlier, the time the Final Prospectus is printed and ~~time requested in the acceleration request submitted on behalf of the Representatives pursuant~~ distributed to ~~Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act~~ any Underwriter, or shall have occurred at such later date as shall have been ~~timely made;~~ consented to by the Representative. Prior to the Series 2007-A Issuance Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Depositor, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faith. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the ProspectusCommission. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives Underwriters shall have received ~~opinions of Foley & Lardner~~an officers’ certificate, ~~special couns▇▇ ▇▇r~~ dated the ~~Company (as to~~ Series 2007-A Issuance Date, signed by the ~~matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary~~ Chairman of the ~~Company (as to~~ Board, the ~~matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii)~~ President or any Vice President and ~~(xiii) addressed to the Representatives, as the representatives~~ by a principal financial or accounting officer of the ~~Underwriters,~~ Depositor representing and ~~dated the First Closing Date or the Second Closing Date, as the case may be~~warranting that, to the ~~effect that~~best of such officers’ knowledge after reasonable investigation, as of the Series 2007-A Issuance Date: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock Each of the ~~Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share,~~ representations and ~~77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock~~ warranties of the ~~Company immediately prior to~~ Depositor in this Agreement is true and correct in all material respects, that the ~~sale of the Shares hereunder have been duly authorized~~ Depositor has complied with all agreements and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform satisfied in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the ~~requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent~~Series 2007-A Issuance Date, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, that no stop order suspending the effectiveness of ~~the~~ any Registration Statement has been issued and no proceedings for that purpose have been instituted or or, to the best of their knowledge, are ~~threatened~~ contemplated by the Commission~~; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement~~ . (~~except for the financial statements and schedules and other statistical or financial data included~~ ii) Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended and supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of the Depositor or any of its affiliates (as such term is defined in Rule 501(b) under the Act) (each, an “Affiliate”), or in the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the terms “material” in this Agreement that refer to the Depositor or its Affiliates, or any of them, shall be interpreted in proportion to the business of NMAC and its consolidated subsidiaries, as a whole, and not in proportion to the business of the Depositor or its Affiliate(s) individually. (d) The Underwriters shall have received an officers’ certificate, dated the Series 2007-A Issuance Date, signed by the Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of NMAC representing and warranting that, to the best of such ~~counsel need express no opinion~~officers’ knowledge after reasonable investigation, as of the Series 2007-A Issuance Date: (i) ~~comply as to form~~ Each of the representations and warranties of NMAC in this Agreement is true and correct in all material ~~respects~~ respects, that NMAC has complied with all agreements and satisfied, in all material respects, all conditions on its part to be performed or satisfied hereunder at or prior to the ~~requirements~~ Series 2007-A Issuance Date, that no stop order suspending the effectiveness of any Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the best of their knowledge, are contemplated by the Commission. (ii) Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended or supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of NMAC or any of its Affiliates, or the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the terms “material” in this Agreement that refer to NMAC or its Affiliates, or any of them, shall be interpreted in proportion to the business of NMAC and its consolidated subsidiaries, as a whole, and not in proportion to the business of NMAC or its Affiliate(s) individually. (e) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Trust, the Depositor, Nissan Motor Co., Ltd., Nissan North America Inc. (“NNA”) or NMAC which, in the judgment of the Representative, materially impairs the investment quality of the Notes or makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes; (ii) any downgrading in the rating of any debt securities of NNA or any of its direct or indirect subsidiaries by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any such debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the ~~conditions~~ New York Stock Exchange or any setting of minimum prices for ~~use~~ trading on such exchange; (iv) any material disruption in commercial banking, securities entitlement or clearance services in the United States; (v) any banking moratorium declared by federal or New York authorities; or (vi) any outbreak or escalation of ~~Form S-3~~major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes. (f) A▇▇▇ ▇. ▇▇▇▇, Esq., General Counsel of the Depositor and NMAC, or other counsel satisfactory to the Representative in its reasonable judgment, shall have furnished to the Representative such counsel’s written opinion, dated the Series 2007-A Issuance Date, in substantially the form set forth in below, with such changes therein as counsel for the ~~General Instructions thereto, have been satisfied;~~Underwriters shall reasonably agree: (~~vii~~i) ~~To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in~~ NMAC has the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to ~~enter into~~ own its properties and conduct its business as described in the Preliminary Prospectus and Final Prospectus, as then amended or supplemented, and, except with respect to the States of California, New York and Tennessee (the “Excluded States”), for which the opinions relative thereto shall be provided by the outside counsel specified below, NMAC is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or the ownership of its property requires such qualification, except where the failure to be in good standing would not have a material adverse effect on NMAC’s ability to perform its obligations under each Basic Document to which it is a party. (ii) The Depositor has the corporate power and authority to own its properties and conduct its business as described in the Preliminary Prospectus and Final Prospectus, as then amended or supplemented, and, except with respect to the Excluded States and the State of Delaware, for which the opinions relative thereto shall be provided by the outside counsel specified below, the Depositor is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or the ownership of its property requires such qualification, except where the failure to be in good standing would not have a material adverse effect on the Depositor’s ability to perform its obligations under each Basic Document to which it is a party. (iii) Each of the Depositor and NMAC has all necessary corporate power and authority to execute, deliver and perform ~~this Agreement; the~~ its obligations under each Basic Document to which it is a party. (iv) The execution, delivery and performance by NMAC of ~~the Company's obligations hereunder and the consummation of the transactions described herein~~ each Basic Document to which it is a party have been duly authorized by ~~the Company by~~ all necessary corporate action on the part of NMAC and ~~this Agreement~~ each Basic Document to which NMAC is a party has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD);it. (xv) The execution, delivery and performance by NMAC of ~~this Agreement~~ each Basic Document to which it is a party and performance by ~~the Company~~ it of its obligations hereunder and thereunder will ~~not: (A) violate any provisions~~ not violate, result in a breach of ~~the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate~~ any of the terms or provisions of, or constitute (with or without notice or lapse of time or both) a default under, or result in the ~~breach~~creation or imposition of any lien, ~~modification~~ charge or ~~termination~~ encumbrance upon any of the properties or assets of NMAC (other than as contemplated in the Basic Documents) pursuant to the terms of (A) NMAC’s Articles of Incorporation, (B) NMAC’s By-Laws, (C) any material agreement or instrument to which NMAC is a party or by which NMAC or any of its properties is bound, (D) any statute, rule, regulation or order of any Texas or federal governmental agency or body or any court having jurisdiction over NMAC or its properties that the undersigned has, in the exercise of customary professional diligence, recognized as applicable to NMAC or to transactions of the type contemplated by the Basic Documents or (E) the Notes. (vi) The execution, delivery and performance by the Depositor of each Basic Document to which it is a party and performance by it of its obligations hereunder and thereunder will not violate, result in a breach of any of the terms or provisions of, or constitute (with or without notice or lapse of time or both) a default under, or result in the creation or imposition of any ~~agreement~~lien, ~~lease, franchise, license, indenture, permit, mortgage, deed~~ charge or encumbrance upon any of ~~trust,~~ the properties or assets of the Depositor (other ~~evidence~~ than as contemplated in the Basic Documents) pursuant to the terms of ~~indebtedness~~ (A) any material agreement or ~~other~~ instrument to which the ~~Company or the Significant Subsidiary~~ Depositor is a party or by which the ~~Company or the Significant Subsidiary,~~ Depositor or any of ~~their respective owned or leased property~~ its properties is bound, ~~and which is filed~~ (B) any statute, rule, regulation or ~~incorporated by reference~~ order of any Texas or federal governmental agency or body or any court having jurisdiction over the Depositor or its properties that the undersigned has, in the exercise of customary professional diligence, recognized as ~~an exhibit~~ applicable to the ~~Registration Statement;~~ Depositor or to transactions of the type contemplated by the Basic Documents or (C) ~~violate any statute~~the Notes. (vii) No authorization, ~~ordinance~~approval, ~~order~~consent, ~~rule, decree~~ order or ~~regulation~~ permit of any ~~court, regulatory~~ Texas or federal governmental ~~body, arbitrator, administrative~~ agency or ~~other instrumentality~~ authority is required on the part of ~~the United States having jurisdiction over the Company~~ NMAC or the ~~Significant Subsidiary (assuming compliance~~ Depositor in connection with ~~all applicable federal~~ the execution and delivery of and performance by NMAC or the Depositor of any Basic Document to which it is a party, except such as may be required under the Act or the Rules and Regulations and state securities laws); , and except for such authorizations, approvals or consents (xispecified in such opinion) ~~To such counsel's knowledge, there~~ as are ~~no holders of Common Stock or other securities~~ in full force and effect as of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content effective date of the Registration Statement and the ~~Prospectus and related matters were discussed and reviewed, and that, although~~ Series 2007-A Issuance Date. (viii) Nothing has come to such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information counsel’s attention that ~~was developed in the course of the performance of such services, they have no reason~~ would cause him to believe that the Registration Statement ~~including any document incorporated by reference therein,~~ on ~~its~~ the effective ~~date,~~ date thereof contained ~~any~~ an untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not ~~misleading,~~ misleading or that the Preliminary Prospectus~~, or any amendment or supplement thereto including any document incorporated by reference therein~~, as of its ~~issue~~ date and as of the ~~Closing Date~~Date of Sale, together with the statements in the Final Prospectus with respect to items identified in the Preliminary Prospectus as to be completed in the Final Prospectus, and the Final Prospectus as of the date of the Prospectus Supplement and as of the Series 2007-A Issuance Date (other than the financial statements and the other accounting information contained therein or omitted therefrom, as to which such counsel need express no belief) contained or ~~contains~~ contain any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements ~~therein~~ therein, in the light of the circumstances under which they were made, not misleading, or that the descriptions therein of statutes and ~~since~~ governmental proceedings and contracts and other documents are inaccurate and do not fairly present the ~~date on which the Registration Statement was initially filed, no event has occurred that was~~ information required to be ~~set forth~~ shown therein. (ix) There are no legal or governmental proceedings known by such counsel to be (i) pending for which the Trust, the Depositor or NMAC has been served official notice of, to which the Trust, the Depositor or NMAC is a party or to which any property of the Trust, the Depositor or NMAC is subject, and (ii) threatened or contemplated by any governmental authority or threatened by others, which proceedings in ~~an amended~~ either clause (i) or ~~supplemented prospectus~~ (ii) of this paragraph (A) (whether individually or in ~~an amendment~~ the aggregate) that are required to be disclosed in the Registration Statement, or (B)(1) assert the invalidity or unenforceability of all or part of any Basic Document or the Notes, (2) seek to prevent the issuance of the Notes, (3) (whether individually or in the aggregate) would materially and adversely affect the Trust’s, the Depositor’s or NMAC’s obligations under any Basic Document to which it is a party, or (4) (whether individually or in the aggregate) seek to affect adversely the state income tax attributes of the Notes. (x) The Depositor has duly authorized and executed the written order to the ~~Registration Statement~~ Owner Trustee to execute and deliver the issuer order to the Indenture Trustee to authenticate the Notes. (xi) Such counsel is familiar with NMAC’s standard operating procedures relating to NMAC’s acquisition of a perfected first priority security interest in the vehicles and Receivables of the Dealers and the perfected security interest in other Collateral (which security interest may be subordinate) in the ordinary course of NMAC’s business and relating to the sale by NMAC to the Depositor of the Receivables and such security interests in the ordinary course of NMAC’s and the Depositor’s business. Assuming that NMAC’s standard procedures are followed with respect to the perfection of security interests in the Vehicles, the Receivables and the security interest in the other Collateral (which security interest may be subordinate) (and such counsel has no reason to believe that NMAC has not ~~been so set fo~~or will not continue to follow its standard procedures in connection with the perfection of security interests in the Vehicles and the Receivables and the su

Appears in 1 contract

Sources: Underwriting Agreement (Nissan Master Owner Trust Receivables)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Bonds will be subject to the accuracy of the representations and warranties on the part of the Company ~~herein set forth as of the date hereof and as of each Closing Date~~herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Company made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Prospectus shall have been ~~declared effective~~ filed by the Company with the Commission ~~not later than 5:30 p.m., Washington, D.C. time, on~~ pursuant to Rule 424(b) within the ~~date of this Agreement, or~~ applicable time period prescribed for such ~~later time~~ filing by the 1933 Act Regulations; and ~~date as~~ each Permitted Free Writing Prospectus shall have been ~~consented to~~ filed by the ~~Representatives, which consent shall be deemed to have been given if~~ Company with the ~~Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives~~ Commission pursuant to Rule ~~461 under~~ 433 within the ~~Act; all filings required~~ applicable time period prescribed for such filing by ~~Rules 424(b~~the 1933 Act Regulations (to the extent so required). (b) On or after the Applicable Time and ~~430A under~~ prior to the ~~Act shall have been timely made;~~ Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued by and no proceedings for that purpose or pursuant to Section 8A of the ~~Commission or any state securities commission nor~~1933 Act shall have been instituted or, to the knowledge of the ~~Company~~Company or you, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be threatened by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) ~~Subsequent~~ On or after the Applicable Time and prior to the ~~execution~~ Closing Date, the rating assigned by ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Ratings Services (or any of their successors) to any debt securities or preferred stock of the Company as of the date of this ~~Agreement,~~Agreement shall not have been lowered. (id) Since the respective most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus and up to the Closing Date, there shall not have ~~occurred~~ been any material adverse change in the condition of the Company and its subsidiary, taken as a whole, financial or ~~development involving~~otherwise, except as reflected in or ~~which could be reasonably expected~~ contemplated by the Pricing Disclosure Package and the Prospectus, and since such dates and up to ~~involve~~the Closing Date, ~~a Material Adverse Effect, whether or~~ there shall not ~~arising from~~ have been any material transaction entered into by the Company other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which ~~on the Company,~~ in ~~any such case described in clause (i) or (ii) above,~~ your reasonable judgment is ~~in the reasonable and good faith opinion of the Representatives~~ so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Shares~~ Bonds on the terms and in the manner contemplated in by the ~~Registration Statement~~ Pricing Disclosure Package and the Prospectus. (ce) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives You shall have received ~~opinions~~ an opinion of ~~Foley & Lardner, special couns~~J. ▇▇▇▇▇▇▇ ▇▇~~r the Company (as to the matters set forth below in subsections (i)~~▇▇▇▇, ~~(ii)~~Esq., ~~(vi), (viii), (ix) and (xiv)), and the Vice President,~~ Associate General Counsel ~~and Secretary~~ of Duke Energy Business Services, LLC, the service company affiliate of the ~~Company (as to the matters set forth in subsections (iii)~~Company, ~~(iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and~~ dated the ~~First Closing Date or the Second~~ Closing Date~~, as the case may be~~, to the effect that: (i) The Company is a corporation duly organized and validly existing ~~as a corporation~~ in good standing under the laws of ~~Delaware~~the State of Indiana, with ~~full corporate~~ power and authority (corporate and other) to ~~own, lease and operate~~ own its properties and conduct its business as ~~presently conducted and as~~ described in the Pricing Disclosure Package and the Prospectus and ~~the Registration Statement;~~to enter into and perform its obligations under this Agreement. (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been Company’s sole subsidiary is a corporation duly ~~authorized~~ organized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing ~~as a corporation~~ in good standing ~~or active status~~ under the laws of ~~Tennessee, with full~~ Indiana and has due corporate ~~power~~ and governmental authority to ~~own~~carry on the business in which it is engaged, ~~lease and operate its properties and to conduct its business as presently conducted and as described~~ except where the failure would not, singularly or in the ~~Prospectus and~~ aggregate, reasonably be expected to have a material adverse effect on the ~~Registration Statement; to such counsel's knowledge~~consolidated financial position, ~~the Company owns directly~~ stockholder’s equity, results of operations, business or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement prospects of the Company ~~enforceable against the Company in accordance with~~ and its ~~terms~~subsidiary, ~~except that rights to indemnity or contribution hereunder may be limited by applicable law and except~~ taken as ~~to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally~~a whole, and ~~by equitable principles limiting~~ to own and operate the ~~right to specific performance or other equitable relief; and, to~~ properties in use in such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD);business. (xiii) The execution, delivery and performance of this ~~Agreement~~ Agreement, the First Mortgage Indenture and the Bonds and compliance by the Company with its obligations hereunder and thereunder (x) will ~~not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of~~not conflict with, or result in any charge or encumbrance upon any of the ~~breach, modification or termination~~ assets of the Company (other than pursuant to the First Mortgage Indenture) pursuant to the terms of, or constitute a default under, any agreement, ~~lease~~indenture or instrument known to such counsel, ~~franchise, license, indenture, permit, mortgage, deed~~ or result in a violation of ~~trust, other evidence~~ the Articles or By-Laws of ~~indebtedness or other instrument to which~~ the Company or (as in effect on the ~~Significant Subsidiary is a party or by which the Company or the Significant Subsidiary,~~ Closing Date) or any ~~of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance,~~ order, ~~rule, decree~~ rule or regulation (also as in effect on the Closing Date) of any ~~court, regulatory~~ court or governmental ~~body, arbitrator, administrative~~ agency ~~or other instrumentality of the United States~~ having jurisdiction over the Company and (y) the issuance of the Bonds in accordance with the First Mortgage Indenture and the sale of the Bonds in accordance with this Agreement, do not and will not result in any violation by the Company of any of the terms or provisions of the ~~Significant Subsidiary (assuming compliance with all applicable federal and state securities laws);~~Articles or By-Laws, or of the First Mortgage Indenture, or any mortgage or other agreement or instrument known to such counsel by which the Company is bound. (xiiv) ~~To such counsel's knowledge~~The First Mortgage Indenture is in due and proper form, ~~there are no holders of Common Stock or other securities~~ has been duly and validly authorized by all necessary corporate action, has been duly executed and delivered by the Company, qualified under the 1939 Act, and, assuming due authorization, execution and delivery by the Trustee, the First Mortgage Indenture is a valid and binding instrument of the Company, enforceable in accordance with its terms, except as (i) the enforceability thereof may be limited by bankruptcy, insolvency, or ~~securities that are convertible or exchangeable into Common Stock or other securities~~ similar laws affecting creditors’ rights generally, and (ii) the rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. (v) The issue of the Bonds by the Company in accordance with the terms of the First Mortgage Indenture has been duly authorized by all necessary corporate action; when duly executed by the Company, ~~that have rights~~ authenticated by the Trustee and delivered to and paid for by the Underwriters pursuant to this Agreement, the Bonds will constitute the legal, valid and binding obligations of the Company enforceable in accordance with their terms, secured by the lien of and entitled to the ~~registration~~ benefits provided by the First Mortgage Indenture, except as (i) the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting creditors’ rights generally, and (ii) the rights of ~~such securities under~~ acceleration and the ~~Act or any Blue Sky Laws;~~availability of equitable remedies may be limited by equitable principles of general applicability. (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xivvi) The Company is has good and marketable title to the properties, rights and assets described in and conveyed by the First Mortgage Indenture and not ~~an "investment company,"~~ released by the Trustee from the lien thereof prior to the time of delivery of the Bonds, subject only to the lien of the First Mortgage Indenture, to “permitted liens” as ~~such term is~~ defined in the ~~Investment~~ First Mortgage Indenture and to certain encumbrances and defects in respect of certain properties in service the aggregate book value of which is not deemed material; the description in the First Mortgage Indenture of such properties, rights and assets is adequate to constitute the First Mortgage Indenture a lien thereon; the First Mortgage Indenture, subject only to the matters referred to above, constitutes a valid and direct first lien on such properties, rights and assets, which include substantially all permanent fixed properties and franchises of the Company ~~Act~~ (except that real estate which is not used or useful in the public utility business of ~~1940~~the Company is excluded from the lien of the First Mortgage Indenture by the provisions thereof); and all permanent fixed properties and franchises acquired by the Company subsequent to the time of issuance of the Bonds (except that in certain cases real estate which is not used or useful in the public utility business of the Company is excluded from the lien of the First Mortgage Indenture by the provisions thereof) will be subject to the lien of the First Mortgage Indenture, subject, however, to “permitted liens” as ~~amended. Such counsel shall also state that they have participated~~ defined in ~~conferences with officers~~ the First Mortgage Indenture and liens, if any, existing or placed on such properties at the time of acquisition thereof by the Company. (vii) The First Mortgage Indenture other ~~representatives~~ than the Fifty-Seventh Supplemental Indenture has been duly filed for record in such manner and in such places as are required by law in order to give constructive notice of, and to establish, preserve and protect the lien of, the First Mortgage Indenture on all property of the Company of every kind referred to in the First Mortgage Indenture as subject to the lien thereof. (viii) Except as referred to in the Pricing Disclosure Package and the Prospectus, there is no action, suit or proceeding, inquiry or investigation, at law or in equity or before or by any court, public board or body, pending or, to such counsel’s knowledge, threatened against or affecting the Company, ~~representatives~~ wherein an unfavorable decision, ruling or finding would (i) materially and adversely affect the condition (financial or otherwise), results of ~~auditors~~ operations, business or properties of the Company or (ii) materially and adversely affect the transactions contemplated by this Agreement, or which would adversely affect the validity or enforceability of the First Mortgage Indenture or the Bonds. (ix) An order of the IURC relating to the issuance of the Bonds has been duly entered and, to such counsel’s knowledge, has not been modified or repealed in any respect and is in full force and effect. The issuance and sale of the Bonds to the Underwriters are in conformity with the terms of such order. Except as may be required under the 1933 Act or the securities or Blue Sky laws of any jurisdiction, no further consent, approval, authorization or order of, or registration or filing with, any court or governmental or public agency, authority or body is required with respect to the Company for the execution, delivery and performance of this Agreement, the First Mortgage Indenture or the Bonds, the issuance by the Company ~~and representatives~~ of the ~~Underwriters and their counsel during which~~ Bonds or the ~~content~~ consummation by the Company of the ~~Registration Statement and~~ transactions contemplated by this Agreement, the ~~Prospectus and related matters were discussed and reviewed~~First Mortgage Indenture or the Bonds. In addition, ~~and that, although~~ such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information shall state that ~~was developed in the course of the performance of~~ no facts have come to such ~~services, they~~ counsel’s attention that have ~~no reason~~ caused such counsel to believe that the Registration ~~Statement including any document incorporated by reference therein~~Statement, ~~on its effective date~~at the Applicable Time, contained ~~any~~ an untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, ~~or any amendment or supplement thereto including any document incorporated by reference therein,~~ as of its ~~issue~~ date and as of the Closing Date, contained or contains ~~any~~ an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (~~provided~~ except that in each case such counsel need not express an opinion as to the financial statements and other financial data included or incorporated by reference therein or excluded therefrom). Such counsel shall further state that, in addition, no facts have come to such counsel’s attention that have caused such counsel to believe that the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that such counsel need not express ~~no belief regarding~~ an opinion as to the financial statements and ~~related schedules and~~ other financial data included or ~~statistical data contained in the Registration Statement, any amendment thereto including any document~~ incorporated by reference ~~therein,~~ therein or ~~the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein~~excluded therefrom). To Such counsel shall expressly authorize the ~~extent that any of such opinions are stated~~ Underwriters to ~~be based upon such counsel's knowledge or to be given "~~rely on its opinion dated the Closing Date delivered to the ~~knowledge of such counsel," such qualification shall signify that no information has come~~ Trustee pursuant to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing DateFirst Mortgage Indenture. (ef) ~~The Representatives~~ You shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇~~sel and Secretary~~▇ ▇▇▇▇ LLC, of counsel to the Company, ~~in their respective capacities as such~~dated the Closing Date, to the effect that: (i) The ~~representations~~ Fifty-Seventh Supplemental Indenture has been duly authorized, executed and ~~warranties~~ delivered by the Company, and assuming due authorization, execution and delivery by the Trustee, the First Mortgage Indenture is a valid and binding instrument of the Company ~~set forth~~ enforceable in ~~Section 2 hereof are true and correct~~ accordance with its terms, except as of (i) the ~~date of this Agreement and as of the date of such certificate~~enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally, and (ii) the ~~Company has complied in all material respects with all~~ rights of acceleration and the ~~agreements and satisfied all the conditions to~~ availability of equitable remedies may be ~~performed or satisfied~~ limited by ~~it at or prior to the date~~ equitable principles of ~~such certificate;~~general applicability. (ii) The ~~Commission has not issued an order preventing or suspending~~ Bonds have been duly authorized, and when duly executed by the ~~use~~ Company, authenticated by the Trustee and delivered to and paid for by the Underwriters pursuant to this Agreement, will be valid and binding obligations of the ~~Prospectus~~ Company enforceable in accordance with their terms, except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or ~~any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending~~ similar laws affecting creditors’ rights generally and (ii) the ~~effectiveness~~ rights of acceleration and the ~~Registration Statement has been issued; and to the knowledge~~ availability of ~~the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws~~ equitable remedies may be limited by equitable principles of ~~any jurisdiction;~~general applicability. (iii) ~~Each~~ This Agreement has been duly authorized, executed and delivered by the Company. (iv) The statements made in the Preliminary Prospectus and the Prospectus under the captions “Description of the ~~respective signatories has examined~~ Mortgage Bonds” and “Certain U.S. Federal Income Tax Considerations for Non-U.S. Holders,” and in the ~~Registration Statement~~ Base Prospectus under the caption “Description of the First Mortgage Bonds,” in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, fairly summarize the matters referred to therein in all material respects. (v) The Company is not, and solely after giving effect to the offering and sale of the Bonds and the application of the proceeds thereof as described in the Prospectus, will not be subject to registration and ~~any amendment or supplement thereto~~regulation as an “investment company” as such term is defined in the 1940 Act. In rendering the foregoing opinions, ~~including any~~ such counsel may state that they have relied as to certain factual matters on information obtained from public officials, officers and representatives of the Company and that the signatures on all documents examined by them are genuine, assumptions which such counsel have not independently verified. In addition, such counsel may assume matters governed by New York law. You shall also have received a statement of ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ LLC, dated the Closing Date, to the effect that: (1) no facts have come to such counsel’s attention that have caused such counsel to believe that the documents filed by the Company under the ~~Exchange~~ 1934 Act and ~~deemed to be~~ the 1934 Act Regulations that are incorporated by reference in the Preliminary Prospectus Supplement that forms a part of the Pricing Disclosure Package and the Prospectus, were not, on their face, appropriately responsive in all material respects to the requirements of the 1934 Act and the 1934 Act Regulations (except that in each case such counsel need not express any view as to the financial statements, schedules and other financial information included or incorporated by reference therein or excluded therefrom or the Form T-1); (2) the Registration Statement, at the Applicable Time and ~~such documents contain all statements~~ the Prospectus, as of ~~material fact required~~ its date, appeared on their face to be ~~stated therein~~appropriately responsive in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations (except that in each case such counsel need not express any view as to the financial statements, schedules and ~~do not include any~~ other financial information included or incorporated by reference therein or excluded therefrom or the Form T-1); and (3) no facts have come to such counsel’s attention that have caused such counsel to believe that the Registration Statement, at the Applicable Time, contained an untrue statement of a material fact or ~~omit~~ omitted to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of its date and ~~since~~ as of the ~~date on~~ Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that in each case such counsel need not express any view as to the ~~Registration Statement was initially filed~~financial statements, ~~no event has occurred that was required to be set forth~~ schedules and other financial information included or incorporated by reference therein or excluded therefrom or the statements contained in ~~an amended or supplemented prospectus or in an amendment~~ the exhibits to the Registration ~~Statement~~ Statement, including the Form T-1). Such counsel shall further state that, in addition, no facts have come to such counsel’s attention that ~~has not been so set fo~~have caused such counsel to believe that th

Appears in 1 contract

Sources: Underwriting Agreement (Duke Energy Indiana, Inc.)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of KBUSA and the ~~Company herein set forth as of the date hereof and as of each Closing Date~~Depositor herein, to the accuracy of the written statements of officers of KBUSA and the ~~Company's officers~~ Depositor made pursuant to the provisions ~~hereof~~of this Section, to the performance ~~in all material respects~~ by KBUSA and the ~~Company~~ Depositor of ~~its~~ their obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) ~~The Registration Statement~~ If the Effective Time is not prior to the execution and delivery of this Agreement, the Effective Time shall have ~~been declared effective by the Commission~~ occurred not later than ~~5:30~~ 6:00 p.m., ~~Washington, D.C.~~ New York City time, on the date of this ~~Agreement,~~ Agreement or such later time ~~and~~ or date as shall have been consented to by the ~~Representatives~~Representative. (b) If the Effective Time is prior to the execution and delivery of this Agreement, ~~which consent shall be deemed to have been given if~~ the ~~Registration Statement~~ Prospectus and any supplements thereto shall have been ~~declared effective on or before~~ filed with the ~~date~~ Commission in accordance with the Rules and ~~time requested in~~ Regulations and Section 5(a) hereof. Prior to the ~~acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made;~~ Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Seller or the Representative, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) The Representative shall have received a letter, dated on or prior to the Closing Date of Ernst & Young LLP on behalf of KBUSA confirming that such accountants are independent public accountants within the meaning of the Act and the applicable published Rules and Regulations thereunder, and substantially in the form of the drafts to which the Representative has previously agreed and otherwise in form and substance reasonably satisfactory to the Representative and its counsel. (d) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred (i) any ~~change or development involving~~change, or ~~which could be reasonably expected to involve~~any development involving a prospective change, ~~a Material Adverse Effect~~in or affecting particularly the business or properties of the Trust, ~~whether~~ KBUSA, the Put Option Provider, KeyCorp or ~~not arising from transactions~~ the Securities Insurer which, in the ~~ordinary course~~ judgment of ~~business~~the Representative, ~~and~~ materially impairs the investment quality of the Notes or makes it impractical or inadvisable to market the Notes; (ii) any downgrading in the ~~Company shall not have sustained~~ rating of any ~~loss~~ debt securities of KBUSA, the Put Option Provider, KeyCorp or ~~interference from~~ the Securities Insurer by any ~~labor dispute~~"nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), ~~strike~~or any public announcement that any such organization has under surveillance or review its rating of any debt securities of KBUSA, ~~fire~~the Put Option Provider, ~~flood~~the Cap Counterparty, ~~windstorm~~KeyCorp or the Securities Insurer (other than an announcement with positive implications of a possible upgrading, ~~accident~~ and no implication of a possible downgrading, of such rating); (iii) any suspension or ~~other calamity~~ limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (~~whether~~ iv) any suspension of trading of any securities of KBUSA, the Put Option Provider or ~~not insured~~KeyCorp on any exchange or in the over-the-counter market; (v) any banking moratorium declared by Federal or ~~from~~ New York authorities; or (vi) any ~~court~~ outbreak or ~~governmental action~~escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, ~~order or decree having a Material Adverse Effect,~~ if the effect of ~~which on the Company, in~~ any such ~~case described~~ event specified in this clause (ivi) ~~or (ii) above, is~~ in the ~~reasonable and good faith opinion~~ judgment of the ~~Representatives so material and adverse as to make~~ Representative makes it impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Shares~~ Notes on the terms and in the manner contemplated in the ~~Registration Statement and the~~ Prospectus. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives shall have received opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The ~~Representatives~~ Representative shall have received an opinion of ~~Michael Best & Friedrich LLP~~▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., Associate General Counsel and Senior Vice President of KBNA, as counsel for (i) KBUSA, as the Seller, the Master Servicer, the Swap Counterparty, the Cap Provider, the Cap Counterparty and the Administrator and (ii) the Depositor, dated the Closing Date, in the form attached hereto as Exhibit A, or as is otherwise satisfactory in form and substance to the Representative and its counsel. (f) The Representative shall have received one or more opinions of ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP, counsel to the Depositor and the Seller, dated the Closing Date, in the form attached hereto as Exhibit B, or as is otherwise satisfactory in form and substance to the Representative and its counsel, regarding certain true sale, bankruptcy, insolvency and perfection of security interest matters regarding the Seller, the Depositor and the Trust. (g) The Representative shall have received an opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as counsel to Key Bank National Association, as the Put Option Provider, dated the Closing Date, in the form attached hereto as Exhibit D, or as is otherwise satisfactory in form and substance to the Representative and its counsel. (h) The Representative shall have received an opinion of [▇▇▇▇▇▇▇▇~~ters~~▇▇▇ & ▇▇▇▇▇▇▇▇ LLP], counsel to KBUSA and the Depositor, dated the ~~First~~ Closing Date and satisfactory in form and substance to the Representative and its counsel, to the effect that the statements in the Prospectus under the headings "Summary of Terms -- Tax Status" and "Pennsylvania State Tax Consequences -- Pennsylvania Income and Franchise Tax Consequences with Respect to the Notes" accurately describe the material Pennsylvania tax consequences to holders of the Notes. (i) The Representative shall have received an opinion addressed to the several Underwriters of ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP, in its capacity as Federal tax and ERISA counsel for the Trust, to the effect that the statements in the Prospectus under the headings "Summary of Terms -- Tax Status" and "Federal Tax Consequences for Trusts in which all Certificates are Retained by the Seller" accurately describe the material Federal income tax consequences to holders of the Notes, and the statements in the Prospectus under the headings "Summary of Terms -- ERISA Considerations" and "ERISA Considerations" to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, have been prepared or reviewed by such counsel and accurately describe the ~~Second~~ material consequences to holders of the Notes under ERISA. ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP, in its capacity as special counsel to the Trust, shall have delivered an opinion with respect to the characterization of the transfer of the Initial Financed Student Loans. (j) The Representative shall have received an opinion addressed to the several Underwriters of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, in its capacity as special counsel to the several Underwriters, dated the Closing Date~~, as the case may be~~, with respect to the ~~sale~~ validity of the ~~Shares hereunder, the Registration Statement~~ Notes and such other related matters as the ~~Representatives may~~ Representative shall reasonably ~~require,~~ require and each of KBUSA and the ~~Company~~ Depositor shall have furnished or caused to be furnished to such counsel such documents ~~and shall have exhibited to them such papers and records~~ as ~~such counsel~~ they may reasonably request for the purpose of enabling them to pass upon such matters. (fk) The ~~Representatives~~ Representative shall have received ~~on each~~ an opinion of [ ], special student loan counsel to the Representative and, in the case of clause (iii) below, special student loan counsel to the Eligible Lender Trustee, dated the Closing Date, ~~a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer,~~ satisfactory in form and ~~W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of~~ substance to the ~~Company, in their respective capacities as such~~Representative, to the effect that: (i) ~~The representations~~ the agreements implementing the Programs, (including the Coordination Agreements) and ~~warranties of~~ the ~~Company set forth~~ Relevant Documents (as defined in ~~Section 2 hereof are true and correct as of the date of this Agreement and as of the date of~~ such ~~certificate~~opinion), and the ~~Company has complied~~ transactions contemplated by the Relevant Documents, conform in all material respects to the applicable requirements of the Higher Education Act, and that, upon the due authorization, execution and delivery of the Relevant Documents and the consummation of such transactions, the Financed Federal Loans, legal title to which will be held by the Eligible Lender Trustee on behalf of the Trust, will qualify, subject to compliance with all ~~the agreements~~ applicable origination and ~~satisfied~~ servicing requirements, for all ~~the conditions to be performed or satisfied by it at or prior to the date of such certificate~~applicable federal assistance payments, including federal reinsurance and federal interest subsidies and special allowance payments; (ii) ~~The Commission~~ such counsel has ~~not issued an order preventing or suspending~~ examined the ~~use of~~ Prospectus, and nothing has come to such counsel's attention that would lead such counsel to believe that, solely with respect to the ~~Prospectus or any Preliminary~~ Higher Education Act and the student loan business, the Prospectus or any amendment or supplement ~~thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge~~ thereto as of the respective ~~signatories~~dates thereof or on the Closing Date contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein not misleading; and (iii) the Eligible Lender Trustee is an "eligible lender" as such term is defined in Section 435(d) of the Higher Education Act for purposes of holding legal title to the Financed Federal Loans. [SUB-SERVICERS AND GUARANTORS TO BE UPDATED IN EACH AGREEMENT] (l) [The Representative shall have received an opinion of counsel to [PHEAA], ~~no proceedings for that purpose have~~ dated the Closing Date and satisfactory in form and substance to the Representative and its counsel, to the effect that: (i) [PHEAA] has been ~~initiated or are pending~~ duly organized and is validly existing as an agency of the Commonwealth of Pennsylvania in good standing under the ~~Act or~~ laws thereof with full power and authority (corporate and other) to own its properties and conduct its business, as presently conducted by it, and to enter into and perform its obligations under the ~~Blue Sky Laws~~ [PHEAA] Sub-Servicing Agreements and the Guarantee Agreement (and the agreements with the Department under Section 428 of the Higher Education Act to the extent relevant to [PHEAA]'s obligations under such Guarantee Agreement) to which it is a party, and had at all relevant times, and now has, the power, authority and legal right to service the Financed Student Loans it is servicing, to guarantee the Financed Federal Loans covered by such Guarantee Agreement and to receive, subject to compliance with all applicable conditions, restrictions and limitations of the Higher Education Act, reinsurance payments from the Department with respect to claims paid by it on such Financed Federal Loans. (ii) [PHEAA] is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals in each jurisdiction in which failure to qualify or to obtain such license or approval would render any ~~jurisdiction;~~Financed Student Loan or [PHEAA]'s obligation under its Guarantee Agreement unenforceable by or on behalf of the Trust. (iii) Each of the ~~respective signatories has examined the Registration Statement~~ [PHEAA] Sub-Servicing Agreements and the ~~Prospectus~~Guarantee Agreement (and the agreements with the Department under Section 428 of the Higher Education Act to the extent relevant to [PHEAA]'s obligations under such Guarantee Agreement) to which [PHEAA] is a party has been duly authorized, executed and delivered by [PHEAA] and is the legal, valid and binding obligation of [PHEAA] enforceable against [PHEAA] in accordance with its terms, notwithstanding the existence of any doctrine of sovereign immunity except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and to the termination powers granted the secretary of the Department under Section 4042 of the Student Loan Reform Act of 1993, amending Section 422 of the Higher Education Act, and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any ~~amendment~~ proceeding therefor may be brought. (iv) Neither the execution and delivery by [PHEAA] of the [PHEAA] Sub-Servicing Agreements or ~~supplement thereto~~the Guarantee Agreement to which it is a party, ~~including~~ nor the consummation by [PHEAA] of the transactions contemplated therein nor the fulfillment of the terms thereof by [PHEAA] will conflict with, result in a breach, violation or acceleration of, or constitute a default under, any ~~documents filed~~ term or provision of [PHEAA]'s authorizing legislation or by-laws of [PHEAA] or of any indenture or other agreement or instrument to which [PHEAA] is a party or by which [PHEAA] is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to [PHEAA] of any court, regulatory body, administrative agency or governmental body having jurisdiction over [PHEAA]. (v) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened against [PHEAA] before or by any governmental authority that might materially and adversely affect the performance by [PHEAA] of its obligations under, or the validity or enforceability of, the [PHEAA] Sub-Servicing Agreements or the Guarantee Agreement (or the agreements with the Department under Section 428 of the Higher Education Act to the extent relevant to [PHEAA]'s obligations under such Guarantee Agreement) to which it is a party. (vi) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of [PHEAA] contained in the [PHEAA] Sub-Servicing Agreements are other than as stated therein.] (m) [The Representative shall have received an opinion of counsel to Great Lakes in its capacity as a Sub-Servicer, dated the Closing Date and satisfactory in form and substance to the Representative and its counsel, to the effect that: (i) Great Lakes has been duly organized and is validly existing as a Wisconsin corporation in good standing under the ~~Exchange Act~~ laws thereof with full power and ~~deemed~~ authority (corporate and other) to own its properties and conduct its business, as presently conducted by it, and to enter into and perform its obligations under the Great Lakes Sub-Servicing Agreement, and had at all relevant times, and now has, the power, authority and legal right to service the Financed Student Loans it is servicing. (ii) The Great Lakes Sub-Servicing Agreement has been duly authorized, executed and delivered by Great Lakes and is the legal, valid and binding obligation of Great Lakes enforceable against Great Lakes in accordance with its terms, except (x) the enforceability thereof may be ~~incorporated~~ subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (iii) Neither the execution and delivery by ~~reference~~ Great Lakes of the Great Lakes Sub-Servicing Agreement, nor the consummation by Great Lakes of the transactions contemplated therein nor the fulfillment of the terms thereof by Great Lakes will conflict with, result in a breach, violation or acceleration of, or constitute a default under, any term or provision of the certificate of incorporation or by-laws of Great Lakes or of any indenture or other agreement or instrument to which Great Lakes is a party or by which Great Lakes is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to Great Lakes of any court, regulatory body, administrative agency or governmental body having jurisdiction over Great Lakes. (iv) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened against Great Lakes before or by any governmental authority that might materially and adversely affect the performance by Great Lakes of its obligations under, or the validity or enforceability of, the Great Lakes Sub-Servicing Agreement. (v) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of Great Lakes contained in the ~~Registration Statement, and such documents contain all statements of material fact required to be~~ Great Lakes Sub-Servicing Agreement are other than as stated therein~~, and do not include any untrue statement~~ .] (n) [The Representative shall have received an opinion of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment counsel to the ~~Registration Statement that~~ Massachusetts Higher Education Assistance Corporation, now doing business as American Student Assistance, a Massachusetts non-profit corporation ("ASA"), dated the Closing Date and satisfactory in form and substance to the Representative and its counsel, to the effect that: (i) ASA has ~~not~~ been ~~so set fo~~duly incorporated and is validly existing as a non-profit corporation in good standing under the laws of the Commonwealth of Massachusetts with full power and authority (corporate and other) to own its properties and conduct its business, as presently conducted b

Appears in 1 contract

Sources: Note Underwriting Agreement (Key Bank Usa National Association)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Certificates will be subject to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of the date hereof and as of each Closing Date~~Seller herein, to the accuracy of the written statements of officers of the ~~Company's officers~~ Seller made pursuant to the provisions ~~hereof~~of this Section, to the performance ~~in all material respects~~ by the ~~Company~~ Seller of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) ~~The Registration Statement~~ If the Effective Time is not prior to the execution and delivery of this Agreement, the Effective Time shall have ~~been declared effective by the Commission~~ occurred not later than ~~5:30~~ 6:00 p.m., ~~Washington, D.C.~~ New York City time, on the date of this ~~Agreement,~~ Agreement or such later time ~~and~~ or date as shall have been consented to by the ~~Representatives~~Representative. (b) If the Effective Time is prior to the execution and delivery of this Agreement, ~~which consent shall be deemed to have been given if~~ the ~~Registration Statement~~ Prospectus and any supplements thereto shall have been ~~declared effective on or before~~ filed with the ~~date~~ Commission in accordance with the Rules and ~~time requested in~~ Regulations and Section 5(a) hereof. Prior to the ~~acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made;~~ Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Seller or the Representative, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) The Representative shall have received a letter, dated on or prior to the Closing Date of Ernst & Young LLP on behalf of the Seller confirming that such accountants are independent public accountants within the meaning of the Act and the applicable published Rules and Regulations thereunder, and substantially in the form of the drafts to which the Representative has previously agreed and otherwise in form and substance reasonably satisfactory to the Representative and its counsel. (d) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred (i) any ~~change or development involving~~change, or ~~which could be reasonably expected to involve~~any development involving a prospective change, ~~a Material Adverse Effect~~in or affecting particularly the business or properties of the Trust, ~~whether~~ KBUSA or ~~not arising from transactions~~ KeyCorp which, in the ~~ordinary course~~ judgment of ~~business~~the Representative, ~~and~~ materially impairs the investment quality of the Certificates or makes it impractical or inadvisable to market the Certificates; (ii) any downgrading in the ~~Company shall not have sustained~~ rating of any ~~loss~~ debt securities of KBUSA or ~~interference from~~ KeyCorp by any ~~labor dispute~~"nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), ~~strike~~or any public announcement that any such organization has under surveillance or review its rating of any debt securities of KBUSA or KeyCorp (other than an announcement with positive implications of a possible upgrading, ~~fire~~and no implication of a possible downgrading, ~~flood~~of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, ~~windstorm~~or any setting of minimum prices for trading on such exchange; (iv) any suspension of trading of any securities of KBUSA or KeyCorp on any exchange or in the over-the-counter market; (v) any banking moratorium declared by Federal or New York authorities; or (vi) any outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, ~~accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect,~~ if the effect of ~~which on the Company, in~~ any such ~~case described~~ event specified in this clause (ivi) ~~or (ii) above, is~~ in the ~~reasonable and good faith opinion~~ judgment of the ~~Representatives so material and adverse as to make~~ Representative makes it impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Shares~~ Certificates on the terms and in the manner contemplated in the ~~Registration Statement and the~~ Prospectus. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives shall have received opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The ~~Representatives~~ Representative shall have received an opinion of ~~Michael Best & Friedrich LLP~~▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., General Counsel of KBUSA, as counsel for KBUSA, as the Seller, the Master Servicer, the Cap Provider and the Administrator, dated the Closing Date, in the form attached hereto as Exhibit A, or as is otherwise satisfactory in form and substance to the Representative and its counsel. (f) The Representative shall have received an opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Seller, dated the Closing Date, in the form attached hereto as Exhibit B, or as is otherwise satisfactory in form and substance to the Representative and its counsel. (g) The Representative shall have received an opinion of ▇▇▇▇▇▇▇▇~~ters~~▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Seller, dated the ~~First~~ Closing Date and satisfactory in form and substance to the Representative and its counsel, to the effect that the statements in the Prospectus under the headings "Summary of Terms--Income Tax Consequences" and "Pennsylvania Income Tax Consequences--Pennsylvania Income and Franchise Tax Consequences with Respect to the Certificates" accurately describe the material Pennsylvania tax consequences to holders of the Certificates. (h) The Representative shall have received an opinion addressed to the several Underwriters of ▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, in its capacity as Federal tax and ERISA counsel for the Trust, to the effect that the statements in the Prospectus under the headings "Summary of Terms--Tax Consequences" and "Federal Tax Consequences for Trusts for which a Partnership Election is Made--Tax Consequences to Holders of the Certificates" accurately describe the material Federal income tax consequences to holders of the Certificates, and the statements in the Prospectus under the headings "Summary of Terms--ERISA Considerations" and "ERISA Considerations" to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, have been prepared or reviewed by such counsel and accurately describe the ~~Second~~ material consequences to holders of the Certificates under ERISA. ▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, in its capacity as special counsel to the Trust, shall have delivered an opinion with respect to the characterization of the transfer of the Initial Financed Student Loans. (i) The Representative shall have received an opinion addressed to the several Underwriters of Stroock & Stroock & ▇▇▇▇▇ LLP, in its capacity as special counsel to the several Underwriters, dated the Closing Date~~, as the case may be~~, with respect to the ~~sale~~ validity of the ~~Shares hereunder,~~ Certificates and the ~~Registration Statement~~ Notes and such other related matters as the ~~Representatives may~~ Representative shall reasonably ~~require,~~ require and the ~~Company~~ Seller shall have furnished or caused to be furnished to such counsel such documents ~~and shall have exhibited to them such papers and records~~ as ~~such counsel~~ they may reasonably request for the purpose of enabling them to pass upon such matters. (fj) The ~~Representatives~~ Representative shall have received ~~on each Closing Date, a certificate~~ an opinion of ~~Kenneth W. Krueger, Senior Vic~~▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ▇~~▇▇ ▇▇ief Financial Officer~~, ~~and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of~~ special student loan counsel to the ~~Company~~Representative and, in ~~their respective capacities as such~~the case of clause (iii) below, special student loan counsel to the Eligible Lender Trustee, dated the Closing Date, satisfactory in form and substance to the Representative, to the effect that: (i) ~~The representations~~ the agreements implementing the Program, (including the Coordination Agreements) and ~~warranties of~~ the ~~Company set forth~~ Relevant Documents (as defined in ~~Section 2 hereof are true and correct as of~~ the ~~date of this Agreement and as of the date of such certificate~~opinion), and the ~~Company has complied~~ transactions contemplated by the Relevant Documents, conform in all material respects to the applicable requirements of the Higher Education Act, and that, upon the due authorization, execution and delivery of the Relevant Documents and the consummation of such transactions, the Financed Federal Loans, legal title to which will be held by the Eligible Lender Trustee on behalf of the Trust, will qualify, subject to compliance with all ~~the agreements~~ applicable origination and ~~satisfied~~ servicing requirements, for all ~~the conditions to be performed or satisfied by it at or prior to the date of such certificate~~applicable federal assistance payments, including federal reinsurance and federal interest subsidies and special allowance payments; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories such counsel has examined the Registration Statement and the Prospectus, and nothing has come to such counsel's attention that would lead such counsel to believe that, solely with respect to the Higher Education Act and the student loan business, the Registration Statement or the Prospectus or any amendment or supplement ~~thereto, including any documents filed under~~ thereto as of the ~~Exchange Act and deemed to be incorporated by reference in~~ respective dates thereof or on the ~~Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any~~ Closing Date contains an untrue statement of a material fact or ~~omit~~ omits to state ~~any~~ a material fact ~~required to be stated therein or~~ necessary in order to make the statements therein not misleading; and (iii) the Eligible Lender Trustee is an "eligible lender" as such term is defined in Section 435(d) of the Higher Education Act for purposes of holding legal title to the Financed Federal Loans. (k) The Representative shall have received an opinion of counsel to PHEAA, dated the Closing Date and satisfactory in form and substance to the Representative and its counsel, to the effect that: (i) PHEAA has been duly organized and is validly existing as an agency of the Commonwealth of Pennsylvania in good standing under the laws thereof with full power and authority (corporate and other) to own its properties and conduct its business, as presently conducted by it, and ~~since~~ to enter into and perform its obligations under the ~~date on which~~ PHEAA Sub-Servicing Agreement and the ~~Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment~~ Guarantee Agreement (and the agreements with the Department under Section 428 of the Higher Education Act to the ~~Registration Statement~~ extent relevant to PHEAA's obligations under such Guarantee Agreement) to which it is a party, and had at all relevant times, and now has, the power, authority and legal right to service the Financed Student Loans it is servicing, to guarantee the Financed Federal Loans covered by such Guarantee Agreement and to receive, subject to compliance with all applicable conditions, restrictions and limitations of the Higher Education Act, reinsurance payments from the Department with respect to claims paid by it on such Financed Federal Loans. (ii) PHEAA is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals in each jurisdiction in which failure to qualify or to obtain such license or approval would render any Financed Student Loan or PHEAA's obligation under its Guarantee Agreement unenforceable by or on behalf of the Trust. (iii) Each of the PHEAA Sub-Servicing Agreement and the Guarantee Agreement to which it is a party (and the agreements with the Department under Section 428 of the Higher Education Act to the extent relevant to PHEAA's obligations under such Guarantee Agreement) to which PHEAA is a party has been duly authorized, executed and delivered by PHEAA and is the legal, valid and binding obligation of PHEAA enforceable against PHEAA in accordance with its terms, notwithstanding the existence of any doctrine of sovereign immunity except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (iv) Neither the execution and delivery by PHEAA of the PHEAA Sub- Servicing Agreement or the Guarantee Agreement to which it is a party, nor the consummation by PHEAA of the transactions contemplated therein nor the fulfillment of the terms thereof by PHEAA will conflict with, result in a breach, violation or acceleration of, or constitute a default under, any term or provision of the certificate of incorporation or by-laws of PHEAA or of any indenture or other agreement or instrument to which PHEAA is a party or by which PHEAA is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to PHEAA of any court, regulatory body, administrative agency or governmental body having jurisdiction over PHEAA. (v) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened against PHEAA before or by any governmental authority that might materially and adversely affect the performance by PHEAA of its obligations under, or the validity or enforceability of, the PHEAA Sub-Servicing Agreement or the Guarantee Agreement (or the agreements with the Department under Section 428 of the Higher Education Act to the extent relevant to PHEAA's obligations under such Guarantee Agreement) to which it is a party. (vi) Nothing has ~~not~~ come to such counsel's attention that would lead such counsel to believe that the representations and warranties of PHEAA contained in the PHEAA Sub-Servicing Agreement are other than as stated therein. (l) The Representative shall have received an opinion of counsel to Great Lakes, dated the Closing Date and satisfactory in form and substance to the Representative and its counsel, to the effect that: (i) Great Lakes has been ~~so set fo~~duly organized and is validly existing as a Wisconsin corporation in good standing under the laws thereof with full power and authority (corporate and other) to own its properties and conduct its business, as presently conducted by it, and to enter into and perform its obligations under the Great Lakes Sub-Servicing Agreement, and had at all relevant times, and now has, the power, authority and legal right to service the Financed Student Loans it is servicing. (ii) The Great Lakes Sub-Servicing Agreement has been duly authorized, executed and delivered by Great Lakes and is the legal, valid and binding obligation of Great Lakes enforceable against Great Lakes in accordance with its terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (iii) Neither the execution and delivery by Great Lakes of the Great Lakes Sub-Servicing Agreement, nor the consummation by Great Lakes of the transactions contemplated therein nor the fulfillment of the terms thereof by Great Lakes will conflict with, result in a breach, violation or acceleration of, or constitute a default under, any term or provision of the certificate of incorporation or by-laws of Great Lakes or of any indenture or other agreement or instrument to which Great Lakes is a party or by which Great Lakes is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to Great Lakes of any court, regulatory body, administrative agency or governmental body having jurisdiction over Great Lakes. (iv) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened against Great Lakes before or by any governmental authority that might materially and adversely affect the performance by Great Lakes of its obligations under, or the validity or enforceability of, the Great Lakes Sub-Servicing Agreement. (v) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of Great Lakes contained in the Great Lakes Sub-Servicing Agreement are other than as stated therein. (m) The Representative shall have received an opinion of counsel to the Massachusetts Higher Education Assistance Corporation, now doing business as American Student Assistance, a Massachusetts non-profit corporation ("ASA"), dated the Closing Date and satisfactory in form and substance to the Representative and its counsel, to the effect that: (i) ASA has been duly incorporated and is validly existing as a non-profit corporation in good standing under the laws of the Commonwealth of Massachusetts with full power and authority (corporate and other) to own its properties and conduct its business, as presently conducted by it, and to enter into and perform its obligations under the Guarantee Agreement (and the agreements with the Department under Section 428 of the Higher Education Act to the extent relevant to ASA's obligations under such Guarantee Agreement) to which it is a party, and had at all relevant times, and now has, the power, authority and legal right to guarantee the Financed Federal Loans covered by such Guarantee Agreement and to receive, subject to compliance with all applicable conditions, restrictions and limitations of the Higher Education Act, reinsurance payments from the Department with respect to claims paid by it on such Financed Federal Loans. (ii) ASA is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals in each jurisdiction in which failure to qualify or to obtain such license or approval would render ASA's obligation under its Guarantee Agreement to

Appears in 1 contract

Sources: Certificate Underwriting Agreement (Key Bank Usa National Association)

Conditions of the Obligations of the Underwriters. The ------------------------------------------------- obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Offered Securities will be subject to the accuracy of the representations and warranties on the part of the Company herein ~~set forth~~ on and as of the ~~date hereof~~ Closing Date as if made on and as of ~~each~~ the Closing Date, to the accuracy of the statements of officers of the ~~Company's officers~~ Company made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) ~~The Registration Statement shall have been declared effective by the Commission not later than 5:30 p.m., Washington, D.C. time, on~~ On or prior to the date of ~~this~~ the Terms Agreement, ~~or such later time and date as~~ the Representatives shall have ~~been consented~~ received a letter, dated the date of delivery thereof, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in form and substance satisfactory to by the Representatives, ~~which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on~~ together with signed or ~~before the date and time requested in the acceleration request submitted on behalf~~ reproduced copies of such letter for each of the ~~Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b)~~ other Underwriters containing statements and ~~430A under the Act shall have been timely made; no stop order suspending the effectiveness~~ information of the ~~Registration Statement shall have been issued by the Commission or any state securities commission nor,~~ type ordinarily included in accountants' "comfort letters" to underwriters with respect to the ~~knowledge of the Company, shall any proceedings for that purpose have been instituted or threatened;~~ financial statements and ~~any request of the Commission or any state securities commission for inclusion of additional~~ certain financial information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faith. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated contained in the Registration Statement and the Prospectus. (cb) If any amendment to the Registration Statement filed prior to the Terms Agreement Date has not been declared effective as of the Terms Agreement Date, such amendment shall have been declared effective not later than 5:30 p.m. (New York City time) on the Terms Agreement Date. The ~~Representatives~~ Prospectus shall ~~not~~ have ~~advised~~ been filed with the ~~Company that~~ Commission in accordance with the Rules and Regulations and Section 4(a) of this Agreement. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and be continuing in effect and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or any Underwriter, shall be contemplated by the Commission. No amendment or supplement to the Prospectus ~~contains an untrue statement~~ shall have been filed to which the Lead Underwriter shall have objected pursuant to Section 4(b). (c) Subsequent to the execution of ~~fact that~~the Terms Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly, the business or properties of the Company or its subsidiaries which, in the ~~reasonable and good faith opinion~~ judgment of a majority in interest of the ~~Representatives~~ Underwriters including any Representatives, materially impairs the investment quality of the Offered Securities; (ii) any downgrading in the rating of any debt securities or ~~counsel~~ preferred stock of the Company by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the ~~Underwriters~~Act), or any public announcement that any such organization has under surveillance or review with possible negative implications its rating of any debt securities or preferred stock of the Company; (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the over- the-counter market; (iv) any banking moratorium declared by U.S. Federal or New York authorities; or (v) any outbreak or escalation of major hostilities in which the United States is ~~material~~ involved, any declaration of war by Congress or ~~omits to state a fact that~~any other substantial national or international calamity or emergency if, in the ~~reasonable and good faith opinion~~ judgment of a majority in interest of the ~~Representatives~~ Underwriters including any Representatives, the effect of any such outbreak, escalation, declaration, calamity or ~~such counsel, is material~~ emergency makes it impractical or inadvisable to proceed with completion of the sale of and ~~is required to be stated therein or necessary to make~~ payment for the ~~statements therein not misleading~~Offered Securities. (d) The Representatives shall have received ~~opinions~~ a signed opinion, dated the Closing Date and addressed to the Underwriters, of ~~Foley~~ ▇▇▇▇▇, ▇▇▇▇▇ & ~~Lardner~~▇▇▇▇▇, special ~~couns▇▇ ▇▇r~~ counsel for the Company, or other counsel for the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed reasonably satisfactory to the Representatives, ~~as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be,~~ substantially to the effect that: (i) The Company is ~~validly~~ an existing ~~as a~~ corporation in good standing under the laws of the State of Delaware, with ~~full~~ corporate power and authority to ~~own, lease and operate~~ own its properties and conduct its business as ~~presently conducted and as~~ described in the ~~Prospectus~~ Prospectus; and the ~~Registration Statement~~Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions within the United States of America in which its ownership or leasing of prop- erty or the conduct of its business requires such qualification and where the failure to be so qualified or in good standing would have a material adverse effect upon its operations or financial condition; (ii) The ~~authorized capital stock~~ Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding obligation of the Company ~~consists~~ enforceable against the Company in accordance with its terms, subject, as to enforceability, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of ~~60,000,000 shares~~ general applicability relating to or affecting creditors' rights, to public policy considerations and to general equity principles; the Indenture complies as to form in all material respects with the requirements of ~~Common Stock~~the Trust Indenture Act; the Securities have been duly authorized by the Company; the Offered Securities (other than any Contract Securities) have been duly executed, ~~par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share~~authenticated and delivered by the Company; the Offered Securities other than any Contract Securities constitute, and ~~77,000,000 shares~~ any Contract Securities, when executed, authenticated, issued and delivered in the manner provided in the Indenture and sold pursuant to Delayed Delivery Contracts, will constitute, valid and legally binding obligations of ~~preferred stock~~the Company enforceable against the Company in accordance with their terms, ~~$1.00 par value per share~~subject, as to enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights, to public policy considerations and to general equity principles; and the Offered Securities other than any Contract Securities conform, and any Contract Securities, when so issued and delivered and sold will conform, in all material respects to the description thereof contained in the Prospectus; (iii) ~~The issued and outstanding shares~~ To the best of ~~capital stock~~ their knowledge without independent inquiry, no consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required for the consummation of the ~~Company immediately prior to~~ transactions contemplated by the Terms Agreement (including the provisions of this Agreement) in connection with the issuance or sale of the ~~Shares hereunder~~ Offered Securities by the Company, except such as are required and have been ~~duly authorized~~ obtained and ~~validly issued~~made under the Act and the Trust Indenture Act and such as may be required under state securities laws (it being un- derstood that such opinion may be limited to such consents, ~~are fully paid~~ approvals, authorizations, orders and ~~nonassessable (except~~filings which, ~~to the extent applicable, as otherwise provided~~ in ~~Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to~~ such counsel's ~~knowledge~~experience, ~~there~~ are ~~no preemptive, preferential or, except as described in the Prospectus, other rights~~ customarily applicable to ~~subscribe for or purchase any shares of capital stock~~ transactions of the ~~Company and~~type contemplated by this Agreement, ~~to such counsel's knowledge, no shares of capital stock of~~ the ~~Company have been issued in violation of such rights~~Terms Agreement and the Indenture); (iv) The ~~Significant Subsidiary is validly existing as a corporation in good standing or active status under~~ execution, delivery and performance of the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledgeIndenture, the ~~Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary;~~ Terms Agreement (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with including the provisions of this Agreement, ) and any Delayed Delivery Contracts and the ~~Shares represented thereby will be duly authorized~~ issuance and ~~validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b)~~ sale of the ~~Wisconsin Business Corporation Law~~Offered Securities and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any material statute, rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Company, any Subsidiary incorporated in the United States of America or any of their respective properties known to such counsel, or the charter or by-laws of the Company, or any such Subsidiary; and the Company has full power and authority to authorize, issue and sell the Offered Securities as ~~judicially interpreted~~contemplated by the Terms Agreement (including the provisions of this Agreement); (viv) The Registration Statement has become effective under the ~~Act~~ Act, the Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) specified in such opinion on the date specified therein, and, to the best of the knowledge of such counsel~~'s knowledge~~, no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceedings for that purpose have been instituted or are ~~threatened by~~ pending or contemplated under the ~~Commission; the Registration Statement~~ Act, and the ~~Prospectus~~ registration statement relating to the Securities, as of its effective date, the Prospectus, as of the date of the Terms Agreement, and any amendment or supplement thereto, ~~including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein~~as of its date, ~~as to which such counsel need express no opinion) comply~~ complied as to form in all material respects with the requirements of the Act; , the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Trust Indenture Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the ~~consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action~~ Rules and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable reliefRegulations; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that ~~the Registration Statement including any document incorporated by reference therein~~such registration statement, on as of its effective date, or any amendment thereto, as of its date, contained any untrue statement of a material fact or omitted ~~or omits~~ to state any material fact required to be stated therein or necessary to make the statements therein not ~~misleading,~~ misleading or that the Prospectus, as of the date of the Terms Agreement or as of such Closing Date, or any amendment or supplement ~~thereto including any document incorporated by reference therein~~thereto, as of its ~~issue~~ date, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; it being understood that such counsel need express no opinion as to the financial statements or other financial and statistical data contained in the Registration Statement or the Prospectus; (vi) The Terms Agreement (including the provisions of this Agreement) and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company; and (vii) Each document filed pursuant to the Exchange Act (other than the financial statements, schedules and other financial and statistical data included therein, as to which such counsel need express no opinion) and incorporated or deemed to be incorporated by reference in the Prospectus complied as to form in all material respects with the applicable requirements of the Exchange Act when so filed. Such counsel in rendering such opinion may rely as to certain matters of fact on certificates of officers of the Company and of public officials; provided, however, that such certificates shall have been delivered to the -------- ------- Representatives on or prior to the Closing Date. (e) The Representatives shall have received a signed opinion, dated the Closing Date and addressed to the Underwriters, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel and Secretary of Case Corporation, substantially to the effect that: (i) To the best of his knowledge, no consent, approval or authorization of any third party is required for the consummation of the transactions contemplated by the Terms Agreement (including the provisions of this Agreement) in connection with the issuance or sale of the Offered Securities by the Company, except such as have been obtained and made and are in full force and effect and such as may be required under state securities laws; (ii) The execution, delivery and performance of the Indenture, the Terms Agreement (including the provisions of this Agreement) and any Delayed Delivery Contracts and the issuance and sale of the Offered Securities and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under (including, without limitation, any event or condition which, with notice or lapse of time, or both, would constitute a default under), any material agreement or instrument known to such counsel to which the Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound or to which any of the properties of the Company or any Subsidiary is subject; (iii) Except as set forth in the Prospectus, there are no material pending legal proceedings known to such counsel to which the Company or any Subsidiary is a party or of which the property of the Company or any Subsidiary is the subject, and to the best knowledge of such counsel no such proceeding is contemplated; and (iv) Such counsel has no reason to believe that the registration statement relating to the Registered Securities, as of its effective date, or any amendment thereto, as of its date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of the date ~~and~~ of the Terms Agreement or as of such Closing Date, or any amendment or supplement thereto, as of its date or as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading (provided~~ misleading; it being understood that such counsel need express no ~~belief regarding~~ opinion as to the financial statements ~~and related schedules and~~ or other financial or statistical data contained in the Registration ~~Statement, any amendment thereto including any document incorporated by reference therein,~~ Statement or the Prospectus~~, or any amendment or supplement thereto including any document incorporated by reference therein)~~. To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys Such counsel in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such ~~opinion, counsel for the Company~~ opinion may ~~rely, to the extent counsel deems such reliance proper,~~ rely as to certain matters of fact ~~upon~~ on certificates of officers of the Company and ~~any governmental~~ of public officials; provided, ~~and copies of all~~ however, that such certificates shall ~~be furnished~~ have been delivered to the -------- ------- Representatives ~~and for the Underwriters~~ on or ~~before each~~ prior to the Closing Date. (ef) The Representatives shall have received ~~an opinion of Michael Best & Friedrich LLP, ▇~~from ▇▇▇▇▇▇ ▇▇▇▇▇▇ ~~the~~ & ▇▇▇▇▇▇▇~~▇ters~~, counsel for the Underwriters, or other counsel for the Underwriters reasonably satisfactory to the Company and the Representatives, such opinion or opinions, dated the ~~First Closing Date or the Second~~ Closing Date~~, as the case may be~~, with respect to the ~~sale~~ incorporation of the ~~Shares hereunder~~Company, the validity of the Offered Securities, the Indenture, the Delayed Delivery Contracts, if any, the Registration ~~Statement~~ Statement, the Prospectus and other related matters as the Representatives may ~~reasonably~~ require, and the Company shall have furnished to such counsel such documents ~~and shall have exhibited to them such papers and records~~ as ~~such counsel~~ they reasonably request for the purpose of enabling them to pass upon such matters. (fg) The Representatives shall have received ~~on each~~ a certificate or certificates, dated the Closing Date, of the President or any Vice President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state that the representations and warranties of the Company in this Agreement are true and correct in all material respects, that the Company has complied in all material respects with all agreements and satisfied in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and is in effect and, to such officer's knowledge, no proceedings for that purpose have been instituted or are contemplated by the Commission and that, subsequent to the date of the most recent financial statements in the Prospectus, there has been no material adverse change in the financial position or results of operations of the Company or its subsidiaries taken as a whole except as set forth in or contemplated by the Prospectus or as described in such certificate and reasonably acceptable to the Lead Underwriter. (h) The Representatives shall have received a letter, dated the Closing Date, of ~~Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇~~▇▇▇▇▇▇ ▇▇▇▇~~sel and Secretary, of the Company, in their respective capacities as such,~~ ▇▇▇▇ LLP to the effect ~~that:~~that they reaffirm the statements made in the letter furnished pursuant to subsection (a) of this Section, except that the specified date referred to in such subsec- tion will be a date not more than three days prior to the Closing Date for the purposes of this subsection. (i) ~~The representations and warranties of~~ On the ~~Company~~ Terms Agreement Date (or as otherwise specified in the Terms Agreement), the Offered Securities shall have been approved for listing on the securities exchange set forth in the Terms Agreement upon notice of issuance. (j) The Company shall have complied with the provisions of Section 2 4(e) hereof ~~are true and correct as~~ with respect to the furnishing of Prospectuses. The Company will furnish the ~~date of this Agreement and as of the date~~ Representatives with such conformed copies of such ~~certificate~~opinions, certificates, letters and documents as the ~~Company has complied~~ Representatives reasonably request. The Lead Underwriter may in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set foits sole discretion wa

Appears in 1 contract

Sources: Underwriting Agreement (Case Credit Corp)

Conditions of the Obligations of the Underwriters. The respective obligations of the several Underwriters ~~under this Agreement~~ hereunder to purchase and pay for the Offered Shares as provided herein on the First Closing Date and, with respect to the Optional Shares, each Option Closing Date, shall be subject to the accuracy of the representations and warranties on the part of the Company ~~herein~~ and the Operating Partnership set forth in Section 1 hereof as of the date hereof and as of the First Closing Date as though then made and, with respect to the Optional Shares, as of each Option Closing ~~Date~~Date as though then made, to the ~~accuracy of the statements of the Company's officers made pursuant to the provisions hereof, to the~~ timely performance ~~in all material respects~~ by the Company of its covenants and other obligations hereunder, and to each of the following additional conditions~~, unless waived in writing by the Representatives~~: (a) ~~The Registration Statement~~ On the date hereof, the Representatives shall have ~~been declared effective by~~ received from Ernst & Young LLP, independent registered public accountants for the ~~Commission not later than 5:30 p.m.~~Company, ~~Washington, D.C. time, on~~ a letter dated the date ~~of this Agreement~~hereof addressed to the Underwriters, ~~or such later time~~ in form and ~~date as shall have been consented~~ substance satisfactory to by the Representatives, ~~which consent~~ containing statements and information of the type ordinarily included in accountant’s “comfort letters” to underwriters, delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), with respect to the Company’s audited and unaudited historical and pro forma financial statements and certain financial information contained or incorporated in the Registration Statement, the Time of Sale Prospectus, and each free writing prospectus, if any. (i) The Company shall ~~be deemed to~~ have ~~been given if~~ filed the Prospectus with the Commission (including the information previously omitted from the Registration Statement ~~shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives~~ pursuant to Rule ~~461~~ 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act; ~~all filings required by Rules 424(b) and 430A under~~ or the ~~Act~~ Company shall have ~~been timely made; no~~ filed a post-effective amendment to the Registration Statement containing the information previously omitted from the Registration Statement pursuant to such Rule 430B, and such post-effective amendment shall have become effective. (ii) No stop order suspending the effectiveness of the Registration Statement ~~shall have been issued by the Commission~~ or any ~~state securities commission nor,~~ post-effective amendment to the ~~knowledge of the Company~~Registration Statement shall be in effect, ~~shall any~~ and no proceedings for ~~that~~ such purpose shall have been instituted or ~~threatened;~~ threatened by the Commission. (iii) If a filing has been made with FINRA, FINRA shall have raised no objection to the fairness and ~~any request~~ reasonableness of the ~~Commission or~~ underwriting terms and arrangements. (c) For the period from and after the date of this Agreement and through and including the First Closing Date and, with respect to any ~~state securities commission for inclusion of additional information~~ Optional Shares purchased after the First Closing Date, each Option Closing Date: (i) in the ~~Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction~~ judgment of the Representatives ~~acting in good faith.~~there shall not have occurred any Material Adverse Effect; and (~~b) Subsequent to the execution of this Agreement, (i~~ii) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any securities of the Company or ~~development involving~~any of its subsidiaries by any “nationally recognized statistical rating organization” as that term is defined under Section 3(a)(62) of the Exchange Act. (d) On each of the First Closing Date and each Option Closing Date, the Representatives shall have received the written opinion, negative assurance letter and tax opinion of ▇▇▇▇▇ Lovells US LLP, counsel for the Company, dated as of such date, in the forms attached hereto as Exhibit A-▇, ▇▇▇▇▇▇▇ ▇-▇ ▇nd Exhibit A-3 respectively and to such further effect as the Representatives shall reasonably request. (e) On each of the First Closing Date and each Option Closing Date, the Representatives shall have received the opinion of Sidley Austin LLP, counsel for the Underwriters in connection with the offer and sale of the Offered Shares, in form and substance satisfactory to the Underwriters, dated as of such date, with executed copies for each of the other Underwriters named on the Prospectus cover page. (f) On each of the First Closing Date and each Option Closing Date, the Representatives shall have received a certificate executed on behalf of the Company and the Operating Partnership by its (or ~~which could be reasonably expected~~ its general partner’s) Chairman of the Board, President or any Executive Vice President and the Chief Financial Officer, dated as of such date, to ~~involve~~the effect set forth in Section 6(b)(ii) and further to the effect that: (i) for the period from and including the date of this Agreement through and including such date, a there has not occurred any Material Adverse Effect~~, whether or not arising from transactions in the ordinary course of business, and~~; (ii) the representations, warranties and covenants of the Company and the Operating Partnership set forth in Section 1 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and (iii) the Company and the Operating Partnership have complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date. (g) On each of the First Closing Date and each Option Closing Date, the Representatives shall ~~not~~ have received from Ernst & Young LLP, independent registered public accountants for the Company, a letter dated such date, in form and substance satisfactory to the Representatives, which letter shall (a) reaffirm the statements made in the letter furnished by them pursuant to Section 6(a), except that the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the First Closing Date or the applicable Option Closing Date, as the case may be; and (b) cover certain financial information contained or incorporated in the Prospectus. (h) On or before each of the First Closing Date and each Option Closing Date, the Representatives and counsel for the Underwriters shall have received such information, documents and opinions as they may reasonably request for the purposes of enabling them to pass upon the issuance and sale of the Offered Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Offered Shares as contemplated herein and in connection with the other transactions contemplated by this Agreement shall be satisfactory in form and substance to the Representatives and counsel for the Underwriters. (i) (i) None of the Operating Partnership, the Company or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Time of Sale Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor ~~dispute, strike, fire, flood, windstorm, accident~~ dispute or ~~other calamity (whether or not insured) or from any~~ court or governmental action, order or ~~decree having~~ decree, otherwise than as set forth or contemplated in the Time of Sale Prospectus, and (ii) since the respective dates as of which information is given in the Time of Sale Prospectus there shall not have been any change in the capital stock of the Company or OP Units of the Operating Partnership or long-term debt of the Operating Partnership, the Company or any of their respective subsidiaries or any change, or any development involving a ~~Material Adverse Effect~~prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Operating Partnership, the Company or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Time of Sale Prospectus, the effect of ~~which on the Company~~which, in any such case described in clause (i) or (ii~~) above~~), is in ~~the reasonable and good faith opinion of the Representatives~~ your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the ~~public~~ offering or the delivery of the Offered Shares being delivered at the First Closing Date or any Option Closing Date on the terms and in the manner contemplated in the ~~Registration Statement and the~~ Time of Sale Prospectus. (cj) ~~The Representatives shall not have advised~~ At the Closing Time, the Company ~~that~~ shall have used reasonable best efforts to effect the listing of the Offered Shares on the NYSE within 30 days after the Closing Time. (k) Prior to the Closing Time, the Articles Supplementary for the Offered Shares shall have been duly filed with SDAT and shall be in full force and effect under the MGCL. (l) Prior to the Closing Time, the OP Agreement Amendment shall have been duly authorized, executed and delivered by the Operating Partnership and will be in full force and effect. (m) Prior to the Closing Time, the Form 8-A Registration Statement ~~or Prospectus contains an untrue statement of fact that,~~ shall have been filed with the Commission and the Form 8-A Registration Statement shall be effective. If any condition specified in ~~the reasonable~~ this Section 6 is not satisfied when and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is as required to be ~~stated therein or necessary~~ satisfied, this Agreement may be terminated by the Representatives by notice from the Representatives to ~~make the statements therein not misleading. (d) The Representatives shall have received opinions of Foley & Lardner, special couns▇▇ ▇▇r~~ the Company ~~(as~~ at any time on or prior to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the ~~sale of the Shares hereunder~~Optional Shares, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received at any time on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the ~~date of such certificate; (ii) The Commission has not issued an order preventing or suspending~~ applicable Option Closing Date, which termination shall be without liability on the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws part of any ~~jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement~~ party to any other party, except that Section 4, Section 7, Section 9 and ~~the Prospectus,~~ Section 10 shall at all times be effective and ~~any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and~~ shall survive such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set fotermination.

Appears in 1 contract

Sources: Underwriting Agreement (QualityTech, LP)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of~~ Company, AFG and the ~~date hereof and as of each Closing Date~~Selling Stockholder herein, to the accuracy of the statements of ~~the Company's~~ Company officers made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Company, AFG and the Selling Stockholder of ~~its~~ their obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The Representatives shall have received a letter, dated the date of delivery thereof (which, if the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement, shall be on or prior to the date of this Agreement or, if the Effective Time of the Initial Registration Statement is subsequent to the execution and delivery of this Agreement, shall be prior to the filing of the amendment or post-effective amendment to the registration statement to be filed shortly prior to such Effective Time), of Ernst & Young LLP in the form set out as Exhibit A to this Agreement. (b) If the Effective Time of the Initial Registration Statement is not prior to the execution and delivery of this Agreement, such Effective Time shall have ~~been declared effective by the Commission~~ occurred not later than ~~5:30 p.m.~~10:00 P.M., ~~Washington, D.C.~~ New York time, on the date of this ~~Agreement,~~ Agreement or such later ~~time and~~ date as shall have been consented to by CSFBC. If the ~~Representatives, which consent shall be deemed to have been given if~~ Effective Time of the Additional Registration Statement (if any) is not prior to the execution and delivery of this Agreement, such Effective Time shall have occurred not later than 10:00 P.M., New York time, on the date of this Agreement or, if earlier, the time the Prospectus is printed and distributed to any Underwriter, or shall have occurred at such later date as shall have been ~~declared effective on or before~~ consented to by CSFBC. If the ~~date and time requested in the acceleration request submitted on behalf~~ Effective Time of the ~~Representatives pursuant~~ Initial Registration Statement is prior to ~~Rule 461 under~~ the ~~Act; all filings required by Rules 424(b)~~ execution and ~~430A under~~ delivery of this Agreement, the ~~Act~~ Prospectus shall have been ~~timely made;~~ filed with the Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement. Prior to such Closing Date, no stop order suspending the effectiveness of ~~the~~ a Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of AFG, the ~~Company~~Selling Stockholder, the Company or the Representatives, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) any change, or ~~(ii) above~~any development or event involving a prospective change, is in the ~~reasonable and good faith opinion~~ condition (financial or other), business, properties or results of operations of the ~~Representatives so material and adverse as~~ Company or its subsidiaries which, in the judgment of a majority in interest of the Underwriters including the Representatives, would be likely to ~~make it impracticable~~ prejudice materially the success of the proposed issue, sale or ~~inadvisable to proceed with~~ distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market of the public offering or the ~~delivery~~ sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities or preferred stock of the ~~Shares on~~ Company by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the ~~terms and~~ Act) or downgrading in the ~~manner contemplated~~ insurance claims paying ability rating of any Insurance Subsidiary by A.M. Best Company, or any public announcement that any such organization has under surveillance or review such rating (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any change in ~~the Registration Statement and the Prospectus. (c) The Representatives shall not have advised the Company that the Registration Statement~~ U.S. or ~~Prospectus contains an untrue statement of fact that~~international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the ~~reasonable and good faith opinion~~ judgment of a majority in interest of the ~~Representatives~~ Underwriters including the Representatives, be likely to prejudice materially the success of the proposed issue, sale or ~~counsel~~ distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the ~~Underwriters~~Company on any exchange or in the over-the-counter market; (v) any banking moratorium declared by U.S. Federal or New York authorities; (vi) any major disruption of settlements of securities or clearance services in the United States or (vii) any attack on, ~~is material~~ outbreak or ~~omits to state a fact that~~escalation of hostilities or act of terrorism involving the United States or any declaration of war by Congress or any other national or international calamity or emergency if, in the ~~reasonable and good faith opinion~~ judgment of a majority in interest of the ~~Representatives~~ Underwriters including the Representatives, such attack, outbreak, escalation, act, declaration, calamity or ~~such counsel~~emergency would be likely to prejudice materially the success of the proposed issue, ~~is material and is required to be stated therein~~ sale or ~~necessary to make~~ distribution of the ~~statements therein not misleading~~Offered Securities, whether in the primary market or in respect of dealings in the secondary market. (d) The Representatives shall have received ~~opinions of Foley & Lardner~~an opinion, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated ~~the First Closing Date or the Second~~ such Closing Date, as of Keating, Muething, & Klekamp, P.L.L., counsel for the ~~case may be~~Company, to the effect that: (i) The Company has been duly incorporated and is ~~validly~~ an existing ~~as a~~ corporation in good standing under the laws of ~~Delaware~~the State of Ohio, with ~~full~~ corporate power and authority to ~~own, lease and operate~~ own its properties and conduct its business as ~~presently conducted and as~~ described in the ~~Prospectus~~ Prospectus; and the ~~Registration Statement~~Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification; (ii) ~~The authorized~~ Each subsidiary of the Company has been duly incorporated and is an existing corporation in good standing under the laws of the jurisdiction of its incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus; and each subsidiary of the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification; all of the issued and outstanding capital stock of each subsidiary of the Company ~~consists~~ has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock of ~~60,000,000 shares of Common Stock~~each subsidiary owned by the Company, ~~par value $1.00 per share~~directly or through subsidiaries, ~~14,000,000 shares of Class A common stock~~is owned free from liens, ~~par value $5.00 per share,~~ encumbrances and ~~77,000,000 shares of preferred stock, $1.00 par value per share~~defects; (iii) The ~~issued~~ Formation will not result in any tax liability to the Company or any of its subsidiaries; (iv) The Offered Securities delivered on such Closing Date and all other outstanding shares of ~~capital~~ common stock of the Company ~~immediately prior to the sale of the Shares hereunder~~ have been duly authorized and validly issued, are fully paid and nonassessable ~~(except,~~ and conform to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described description thereof contained in the Prospectus; immediately prior to the closing, ~~other rights to subscribe for or purchase any~~ the Selling Stockholder owns all of the outstanding shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus Company; and the ~~Registration Statement;~~ Selling Stockholder has no preemptive rights with respect to ~~such counsel's knowledge,~~ the ~~Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary~~Securities; (v) ~~The certificates for~~ Except as disclosed in the ~~Shares~~ Prospectus, there are no contracts, agreements or understandings known to such counsel between the Company and any person granting such person the right to require the Company to file a registration statement under the Act with respect to any securities of the Company owned or to be ~~delivered hereunder conform~~ owned by such person or to require the Company to include such securities in ~~all material respects~~ the securities registered pursuant to the ~~requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned~~ Registration Statement or in any securities being registered pursuant to any other registration statement filed by the ~~Company's transfer agent, and delivered~~ Company under the Act that have not been validly waived or satisfied prior to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted)date hereof; (vi) The Company is not and, after giving effect to the offering and sale of the Offered Securities, will not be an "investment company" as defined in the Investment Company Act of 1940; (vii) No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required to be obtained or made by the Company, AFG or the Selling Stockholder or any subsidiary of the Company, AFG or the Selling Stockholder for the consummation of the Formation or the transactions contemplated by this Agreement in connection with the sale of the Offered Securities, except such as have been obtained and made under the Act and such as may be required under state insurance laws (all of which have been obtained prior to the date hereof) and under state securities laws; (viii) The execution, delivery and performance of this Agreement and each of the Inception Agreements, and the consummation of the transactions herein and therein contemplated and of the Formation will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Company, AFG or the Selling Stockholder or any subsidiary of the Company, AFG or the Selling Stockholder or any of their respective properties, or any agreement or instrument to which the Company, AFG or the Selling Stockholder or any such subsidiary is a party or by which the Company, AFG or the Selling Stockholder or any such subsidiary is bound or to which any of the respective properties of the Company, AFG or the Selling Stockholder or any such subsidiary is subject, or the charter or by-laws (or similar corporate documents) of the Company, AFG or the Selling Stockholder or any such subsidiary; (ix) Except as disclosed in the Prospectus, to the knowledge of such counsel, there are no pending actions, suits or proceedings against or affecting the Company, AFG or the Selling Stockholder any of their respective subsidiaries or any of their respective properties that, if determined adversely to the Company, AFG or the Selling Stockholder or any of their respective subsidiaries, would individually or in the aggregate have a Material Adverse Effect, or would materially and adversely affect the ability of the Company, AFG and the Selling Stockholder to perform their respective obligations under this Agreement or the ability of any party to any Inception Agreement to perform its obligations thereunder, or which are otherwise material in the context of the sale of the Offered Securities or the Formation; and to the knowledge of such counsel, no such actions, suits or proceedings are threatened or contemplated; (x) The Initial Registration Statement ~~has become~~ was declared effective under the Act as of the date and time specified in such opinion, the Additional Registration Statement (if any) was filed and became effective under the Act as of the date and time (if determinable) specified in such opinion, the Prospectus either was filed with the Commission pursuant to the subparagraph of Rule 424(b) specified in such opinion on the date specified therein or was included in the Initial Registration Statement or the Additional Registration Statement (as the case may be), and, to the best of the knowledge of such counsel~~'s knowledge~~, no stop order suspending the effectiveness of ~~the~~ a Registration Statement or any part thereof has been issued and no proceedings for that purpose have been instituted or are ~~threatened by~~ pending or contemplated under the ~~Commission; the~~ Act, and each Registration Statement and the ~~Prospectus~~ Prospectus, and ~~any~~ each amendment or supplement thereto, ~~including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical~~ as of their respective effective or ~~financial data included therein~~issue dates, ~~as to which such counsel need express no opinion) comply~~ complied as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the ~~consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action~~ Rules and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable reliefRegulations; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that ~~the~~ any part of a Registration Statement ~~including~~ or any ~~document incorporated by reference therein~~amendment thereto, on as of its effective ~~date~~date or as of such Closing Date, contained any untrue statement of a material fact or omitted ~~or omits~~ to state any material fact required to be stated therein or necessary to make the statements therein not ~~misleading,~~ misleading or that the ~~Prospectus,~~ Prospectus or any amendment or supplement ~~thereto including any document incorporated by reference therein~~thereto, as of its issue date ~~and~~ or as of ~~the~~ such Closing Date, contained ~~or contains~~ any untrue statement of a material fact or omitted ~~or omits~~ to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading (provided~~ misleading; the descriptions in the Registration Statements and Prospectus of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information required to be shown; and such counsel do not know of any legal or governmental proceedings required to be described in a Registration Statement or the Prospectus which are not described as required or of any contracts or documents of a character required to be described in a Registration Statement or the Prospectus or to be filed as exhibits to a Registration Statement which are not described and filed as required; it being understood that such counsel need express no ~~belief regarding~~ opinion as to the financial statements ~~and related schedules and~~ or other financial ~~or statistical~~ data contained in the Registration ~~Statement, any amendment thereto including any document incorporated by reference therein,~~ Statements or the Prospectus; (xi) Each Inception Agreement has been duly authorized, executed and delivered by each of the parties thereto, is in full force and effect and constitutes valid and legally binding obligations of the parties thereto enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or ~~any amendment or supplement thereto including any document incorporated~~ affecting creditors' rights and to general equity principles; (xii) This Agreement has been duly authorized, executed and delivered by ~~reference therein).~~ the Company, the Selling Stockholder and AFG; (xiii) To the ~~extent that any~~ knowledge of such ~~opinions~~ counsel (after reasonable investigation), each Insurance Subsidiary holds such insurance licenses, certificates and permits from governmental authorities (including, without limitation, Insurance Licenses) as are ~~stated~~ necessary to ~~be based upon such counsel's knowledge or to be given "~~the conduct of its business as described in the Prospectus; to the knowledge of such counsel~~," such qualification shall signify~~ , there is no pending or threatened action, suit, proceeding or investigation that ~~no information has come~~ could reasonably be expected to result in the revocation, termination or suspension of any Insurance License which would have a Material Adverse Effect; and except as disclosed in the Prospectus, to the ~~attention~~ knowledge of such counsel, no insurance regulatory agency or body has issued, or commenced any proceeding for the ~~attorneys~~ issuance of, any order or decree impairing, restricting or prohibiting the payment of dividends by any Insurance Subsidiary to its parent; (xiv) To the knowledge of such counsel, all reinsurance treaties and arrangements to which any Insurance Subsidiary is a party are in full force and effect and such ~~firm who have been involved~~ counsel is not aware of any violation of, or default in the ~~preparation~~ performance, observance or ~~review of the Registration Statement~~ fulfillment of, any obligation, agreement, covenant or ~~the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question.~~ condition contained therein by any Insurance Subsidiary; and In rendering such opinion, such counsel ~~for~~ may state that its opinion is limited to matters governed by the ~~Company may rely~~Federal laws of the United States of America and the laws of the State of Ohio and has relied on certificates of James C. Kennedy, ~~to the extent counsel deems such reliance proper~~Esq., Vice President, Deputy General Counse▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ of AFG and Eve Rosen, Esq. of Great American Insurance Company, as to ce▇▇▇▇▇ ▇▇▇tual matters ~~of fact~~ attached to such opinion. Such opinion shall state that Dewey Ballantine LLP may rely upon ~~certificates of officers of the Company and any governmental officials, and copies of all~~ such ~~certificates shall be furnished~~ opinion as to ~~the Representatives and for the Underwriters on or before each Closing Date~~matters ▇▇ ▇▇▇▇ ▇▇▇ ▇▇ rendering its opinion pursuant to Section 6(f) hereof. (e) The Representatives shall have received an ~~opinion~~ opinion, dated such Closing Date, of ~~Michael Best~~ Keating, Muething & ~~Friedrich LLP~~Klekamp, ~~▇▇▇▇▇▇▇ ▇▇▇~~ P.L.L., counsel for the Selling ▇▇▇▇▇▇▇~~▇ters~~lder, ~~dated the First Closing Date or the Second Closing Date, as the case may be, with respect~~ to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ~~▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect~~ that: (i) The ~~representations~~ Selling Stockholder had valid and ~~warranties of~~ unencumbered title to the ~~Company set forth in Section 2 hereof are true~~ Offered Securities delivered by the Selling Stockholder on such Closing Date and ~~correct as of~~ had full right, power and authority to sell, assign, transfer and deliver the ~~date of this Agreement and as of~~ Offered Securities delivered by the ~~date of~~ Selling Stockholder on such ~~certificate,~~ Closing Date hereunder; and the ~~Company has complied in all material respects with all the agreements~~ several Underwriters have acquired valid and ~~satisfied all the conditions to be performed or satisfied by it at or prior~~ unencumbered title to the ~~date of~~ Offered Securities purchased by them on such ~~certificate~~Closing Date hereunder; (ii) ~~The Commission has not issued an~~ No consent, approval, authorization or order ~~preventing~~ of, or ~~suspending the use of the Prospectus~~ filing with, any governmental agency or body or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact court is required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set foo

Appears in 1 contract

Sources: Underwriting Agreement (Infinity Property & Casualty Corp)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of the ~~Company~~ Seller and the Servicer herein ~~set forth as of~~ on the date hereof and ~~as of each~~ at the Closing Date, to the accuracy of the statements of officers of the ~~Company's officers~~ Seller and the Servicer made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Seller and the Servicer of ~~its~~ their respective obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) ~~The~~ At the time this Agreement is executed and delivered by the Seller and at the Closing Date, Deloitte & Touche LLP shall have furnished to the Representative letters dated respectively as of the date of this Agreement and as of the Closing Date substantially in the forms of the drafts to which the Representative previously agreed. (b) If the Effective Time of the Initial Registration Statement is not prior to the execution and delivery of this Agreement, such Effective Time shall have ~~been declared effective by the Commission~~ occurred not later than ~~5:30~~ 10:00 p.m., ~~Washington, D.C.~~ New York time, on the date of this ~~Agreement,~~ Agreement or such later ~~time and~~ date as shall have been consented to by the ~~Representatives, which consent shall be deemed to have been given if~~ Representative. If the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement, the Prospectus shall have been ~~declared effective~~ filed with the Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement. If the Effective Time of the Additional Registration Statement (if any) is not prior to the execution and delivery of this Agreement, such Effective Time shall have occurred not later than 10:00 p.m., New York time, on ~~or before~~ the date of this Agreement or, if earlier, the time the Prospectus is printed and ~~time requested in the acceleration request submitted on behalf of the Representatives pursuant~~ distributed to ~~Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act~~ any Underwriter, or shall have occurred at such later date as shall have been ~~timely made;~~ consented to by the Representative. Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Seller, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faith. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the ProspectusCommission. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives Underwriters shall have received ~~opinions of Foley & Lardner~~an officers' certificate, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the ~~First Closing Date or the Second~~ Closing Date, as signed by the ~~case may be~~Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of the Seller representing and warranting that, to the ~~effect that~~best of such officers' knowledge after reasonable investigation, as of the Closing Date: (i) The ~~Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power~~ representations and ~~authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock~~ warranties of the ~~Company consists of 60,000,000 shares of Common Stock~~Seller in this Agreement are true and correct in all material respects, ~~par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share,~~ that the Seller has complied with all agreements and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform satisfied in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the ~~requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent~~Closing Date, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, that no stop order suspending the effectiveness of ~~the~~ any Registration Statement has been issued and no proceedings for that purpose have been instituted or or, to the best of their knowledge, are ~~threatened~~ contemplated by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied;. (~~vii~~ii) ~~To such counsel's knowledge~~There has been no material adverse change, ~~there are no pending or threatened legal or governmental proceedings that are required to be described in~~ since the ~~Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge,~~ respective dates as of which information is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth given in the Prospectus (except as otherwise set forth therein and exclusive of amendments or supplements after the date hereof), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of the Seller or any of its affiliates (as such term is defined in Rule 501(b) under the ~~heading~~ Act) (each, an "~~Description of Capital Stock,"~~ Affiliate"), or in the ~~description~~ ability of ~~the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement~~ such entity to perform its obligations under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument each Basic Document to which ~~the Company or the Significant Subsidiary~~ it is a party or by which it may be bound. Except as otherwise indicated by the ~~Company~~ context, all references to the terms "material" in this Agreement that refer to the Seller or ~~the Significant Subsidiary~~its Affiliates, or any of ~~their respective owned or leased property is bound~~them, shall be interpreted in proportion to the business of the Servicer and its consolidated subsidiaries, as a whole, and ~~which is filed or incorporated by reference as an exhibit~~ not in proportion to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality business of the ~~United States having jurisdiction over the Company~~ Seller or ~~the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws);~~its Affiliate(s) individually. (xid) ~~To such counsel's knowledge~~The Underwriters shall have received an officers' certificate, ~~there are no holders of Common Stock or other securities~~ dated the Closing Date, signed by the Chairman of the ~~Company~~Board, the President or ~~securities that are convertible~~ any Vice President and by a principal financial or ~~exchangeable into Common Stock or other securities~~ accounting officer of the ~~Company~~Servicer representing and warranting that, ~~that have rights~~ to the ~~registration~~ best of such ~~securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge~~officers' knowledge after reasonable investigation, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the ~~Company set forth~~ Servicer in ~~Section 2 hereof~~ this Agreement are true and correct ~~as of the date of this Agreement and as of the date of such certificate, and the Company has complied~~ in all material ~~respects~~ respects, that the Servicer has complied with all ~~the~~ agreements and ~~satisfied~~ satisfied, in all ~~the~~ material respects, all conditions on its part to be performed or satisfied ~~by it~~ hereunder at or prior to the ~~date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto;~~ Closing Date, that no stop order suspending the effectiveness of ~~the~~ any Registration Statement has been ~~issued;~~ issued and ~~to the knowledge of the respective signatories,~~ no proceedings for that purpose have been ~~initiated~~ instituted or, to the best of their knowledge, are contemplated by the Commission. (ii) There has been no material adverse change, since the respective dates as of which information is given in the Prospectus (except as otherwise set forth therein and exclusive of amendments or ~~are pending~~ supplements after the date hereof), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of the Servicer or any of its Affiliates, or the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the terms "material" in this Agreement that refer to the Servicer or its Affiliates, or any of them, shall be interpreted in proportion to the business of the Servicer and its consolidated subsidiaries, as a whole, and not in proportion to the business of the Servicer or its Affiliate(s) individually. (e) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Seller, Nissan Motor Co., Ltd., NNA or the Servicer which, in the judgment of the Representative, materially impairs the investment quality of the Notes or makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes; (ii) any downgrading in the rating of any debt securities of NNA or any of its direct or indirect subsidiaries by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any such debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange; (iv) any material disruption in commercial banking, securities entitlement or clearance services in the United States; (v) any banking moratorium declared by federal or New York authorities; or (vi) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes. (f) Joy Crose, Esq., General Counsel of the Seller, or other couns▇▇ ▇▇▇▇▇▇actory to the Representative in its reasonable judgment, shall have furnished to the Representative such counsel's written opinion, dated the Closing Date, in substantially the form set forth below, with such changes therein as counsel for the Underwriters shall reasonably agree: (i) The Seller 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, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or the ownership of its property requires such qualification, except where the failure to be in good standing would not have a material adverse effect on the Seller's ability to perform its obligations under the Basic Documents. (ii) The Servicer has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California with corporate power and authority to own its properties and conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or the ownership of its property requires such qualification, except where the failure to be in good standing would not have a material adverse effect on the Servicer's ability to perform its obligations under the Basic Documents. (iii) The Basic Documents have been duly authorized, executed and delivered by each of the Seller and the Servicer, as applicable, and each of the Seller and the Servicer has the corporate power and authority to enter into and perform its respective obligations under the Basic Documents. (iv) The execution, delivery and performance of the Basic Documents by the Seller and the Servicer will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the respective properties or assets of the Seller or the Servicer, pursuant to the terms of the Notes or the charter or bylaws of the Seller or the Servicer, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Seller or the Servicer or any of their respective properties or any material agreement or instrument to which the Seller or the Servicer is a party or by which either the Seller or the Servicer or any of their respective properties is bound. (v) No authorization, approval or consent of any court or governmental agency or authority is necessary in connection with the execution, delivery and performance by the Seller or the Servicer of the Basic Documents to which it is a party, except such as may be required under the Act or ~~under~~ the ~~Blue Sky Laws~~ Rules and Regulations and state securities laws, and except for such authorizations, approvals or consents (specified in such opinion) as are in full force and effect as of ~~any jurisdiction;~~the Effective Date and the Closing Date. (~~iii~~vi) ~~Each~~ Nothing has come to such counsel's attention that would cause it to believe that as of the ~~respective signatories has examined~~ Effective Date and at the Closing Date the Registration Statement and the ~~Prospectus~~Prospectus (other than the financial statements and the other accounting information contained therein or omitted therefrom, ~~and any amendment~~ as to which such counsel need express no belief) contained or ~~supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents~~ contain ~~all statements of material fact required to be stated therein, and do not include~~ any untrue statement of a material fact or omitted or omit to state any material fact required to be stated therein or necessary to make the statements ~~therein~~ therein, in the light of the circumstances under which they were made, not misleading, or that the descriptions therein of statutes and ~~since~~ governmental proceedings and contracts and other documents are inaccurate and do not fairly present the ~~date on which the Registration Statement was initially filed, no event has occurred that was~~ information required to be ~~set forth in~~ shown therein. (vii) Such counsel does not know of any contract or other document of a character required to be filed as an ~~amended or supplemented prospectus or in an amendment~~ exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which is not filed or described as required. (viii) There are no legal or governmental proceedings pending to which the Seller or the Servicer is a party or of which any property of the Seller or the Servicer is the subject, and no such proceedings are known by such counsel to be threatened or contemplated by governmental authorities or threatened by others, (A) (whether individually or in the aggregate) that are required to be disclosed in the Registration Statement or (B)(1) asserting the invalidity of all or part of any Basic Document, (2) seeking to prevent the issuance of the Notes, (3) (whether individually or in the aggregate) that would materially and adversely affect the Seller's or the Servicer's obligations under any Basic Document to which it is a party, or (4) (whether individually or in the aggregate) seeking to affect adversely the federal or state income tax attributes of the Notes. (ix) The Servicer has corporate power and authority to sell and assign the property to be sold and assigned to the Seller pursuant to the Purchase Agreement and has duly authorized such sale and assignment to the Seller by all necessary corporate action. (x) The Seller has corporate power and authority to sell and assign the property to be sold and assigned to and deposited with the Trust and has duly authorized such sale and assignment to the Trust by all necessary corporate action. (xi) Such counsel is familiar with the Servicer's standard operating procedures relating to the Servicer's acquisition of a perfected first priority security interest in the vehicles financed by the retail installment sale contracts purchased by the Servicer in the ordinary course of the Servicer's business and relating to the sale by the Servicer to the Seller of such contracts and such security interests in the Financed Vehicles in the ordinary course of the Servicer's and the Seller's business. Assuming that the Servicer's standard procedures are followed with respect to the perfection of security interests in the Financed Vehicles (and such counsel has no reason to believe that the Servicer has not or will not continue to follow its standard procedures in connection with the perfection of security interests in the Financed Vehicles), the Servicer has acquired or will acquire a perfected first priority security interest in the Financed Vehicles. (xii) Each of the Seller and the Servicer has obtained all necessary governmental licenses and governmental approvals under the federal law of the United States and the laws of the State of California to conduct their respective businesses where the failure to obtain such licenses and approvals would render any material part of the corpus of the Trust unenforceable or would materially and adversely affect the ability of either the Seller or the Servicer to perform any of their respective obligations under, or the enforceability of, any of the Basic Documents. (g) O'Melveny & Myers LLP, special counsel to the Seller, shall have furnished ▇▇ ▇he Representative their written opinion, dated as of the Closing Date, in substantially the form set forth below, with such changes therein as counsel for the Underwriters shall reasonably agree: (i) Each Basic Document to which the Seller or the Servicer is a party has been ~~so set fo~~duly authorized by all necessary corporate action on the part of such Person and has been executed and delivered by such Person. (ii) Assuming the due authorization, execution and delivery thereof by the Owner Trustee and the Indenture Trustee, each Basic Document to which the Seller or the Servicer is a party constitutes a legally valid and binding obligation of the Seller or the Servicer, as the case may be, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect, relating to or affecting creditors' rights generally and by the application of general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance, injunctive relief or any other equitable remedy (regardless of whether enforcement is considered in a proceeding at law or in equity). (iii) Assuming the Notes have been duly and validly authorized, when executed and authenticated by the Trust as specified in the Indenture and delivered against payment of the consideration specified in this Agreement, the Notes will be legally valid and binding obligations of the Trust, and entitled to the benefits of the Indenture enforceable ag

Appears in 1 contract

Sources: Underwriting Agreement (Nissan Auto Receivables 2002 C Owner Trust)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Bonds will be subject to the accuracy of the representations and warranties on the part of the Company ~~herein set forth as of the date hereof and as of each Closing Date~~herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Company made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Prospectus shall have been ~~declared effective~~ filed by the Company with the Commission ~~not later than 5:30 p.m.~~pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the 1933 Act Regulations, ~~Washington, D.C. time, on the date of this Agreement, or such later time~~ and ~~date as~~ each Permitted Free Writing Prospectus shall have been ~~consented to~~ filed by the ~~Representatives, which consent shall be deemed to have been given if~~ Company with the ~~Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives~~ Commission pursuant to Rule ~~461 under~~ 433 within the ~~Act; all filings required~~ applicable time period prescribed for such filing by ~~Rules 424(b~~the 1933 Act Regulations (to the extent so required). (b) On or after the Applicable Time and ~~430A under~~ prior to the ~~Act shall have been timely made;~~ Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued by and no proceedings for that purpose or pursuant to Section 8A of the ~~Commission or any state securities commission nor~~1933 Act shall have been instituted or, to the knowledge of the ~~Company~~Company or you, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be threatened by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) ~~Subsequent~~ On or after the Applicable Time and prior to the ~~execution~~ Closing Date, the rating assigned by ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Ratings Services (or any of their successors) to any debt securities or preferred stock of the Company as of the date of this ~~Agreement,~~Agreement shall not have been lowered. (id) Since the respective most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus and up to the Closing Date, there shall not have ~~occurred~~ been any material adverse change in the condition of the Company and its subsidiaries, taken as a whole, financial or ~~development involving~~otherwise, except as reflected in or ~~which could be reasonably expected~~ contemplated by the Pricing Disclosure Package and the Prospectus, and since such dates and up to ~~involve~~the Closing Date, ~~a Material Adverse Effect, whether or~~ there shall not ~~arising from~~ have been any material transaction entered into by the Company other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which ~~on the Company,~~ in ~~any such case described in clause (i) or (ii) above,~~ your reasonable judgment is ~~in the reasonable and good faith opinion of the Representatives~~ so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Shares~~ Bonds on the terms and in the manner contemplated in by the ~~Registration Statement~~ Pricing Disclosure Package and the Prospectus. (ce) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives You shall have received ~~opinions~~ an opinion of ~~Foley & Lardner, special couns~~▇▇▇▇▇▇▇ ▇~~▇r the Company (as to the matters set forth below in subsections (i)~~. Beach, ~~(ii)~~Esq., ~~(vi), (viii), (ix) and (xiv)), and the Vice President,~~ Assistant General Counsel ~~and Secretary~~ of Duke Energy Business Services, LLC, the service company affiliate of the ~~Company (as to the matters set forth in subsections (iii)~~Company, ~~(iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and~~ dated the ~~First Closing Date or the Second~~ Closing Date~~, as the case may be~~, to the effect that: (i) The Company is a corporation duly organized and validly existing ~~as a corporation~~ in good standing under the laws of ~~Delaware~~the State of Ohio, with ~~full corporate~~ power and authority (corporate and other) to ~~own, lease and operate~~ own its properties and conduct its business as ~~presently conducted and as~~ described in the Pricing Disclosure Package and the Prospectus and ~~the Registration Statement;~~to enter into and perform its obligations under this Agreement. (ii) The ~~authorized capital stock~~ Company is duly qualified to do business in each jurisdiction in which the ownership or leasing of its property or the conduct of its business requires such qualification, except where the failure would not, singularly or in the aggregate, reasonably be expected to have a material adverse effect on the consolidated financial position, stockholder’s equity, results of operations, business or prospects of the Company ~~consists of 60,000,000 shares of Common Stock~~and its subsidiaries, ~~par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share~~taken as a whole, and ~~77,000,000 shares of preferred stock, $1.00 par value per share;~~to own and operate the properties in use in such business. (iii) ~~The issued and outstanding shares of capital stock~~ Each of the ~~Company immediately prior to the sale of the Shares hereunder have been~~ Company’s subsidiaries is duly ~~authorized~~ organized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing ~~as a corporation~~ in good standing ~~or active status~~ under the laws of ~~Tennessee, with full~~ the jurisdiction of its organization and has due corporate ~~power~~ and governmental authority to ~~own~~carry on the business in which it is engaged, ~~lease and operate its properties and to conduct its business as presently conducted and as described~~ except where the failure would not, singularly or in the ~~Prospectus and~~ aggregate, reasonably be expected to have a material adverse effect on the ~~Registration Statement; to such counsel's knowledge~~consolidated financial position, ~~the Company owns directly~~ stockholder’s equity, results of operations, business or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement prospects of the Company ~~enforceable against the Company in accordance with~~ and its ~~terms~~subsidiaries, ~~except that rights to indemnity or contribution hereunder may be limited by applicable law and except~~ taken as ~~to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally~~a whole, and ~~by equitable principles limiting~~ to own and operate the ~~right to specific performance or other equitable relief; and, to~~ properties in use in such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD);businesses. (xiv) The execution, delivery and performance of this ~~Agreement~~ Agreement, the Indenture and the Bonds and compliance by the Company with its obligations under this Agreement, the Indenture and the Bonds will ~~not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of~~not conflict with, or result in any charge or encumbrance upon any of the ~~breach, modification or termination~~ assets of the Company (other than pursuant to the Indenture) pursuant to the terms of, or constitute a default under, any agreement, ~~lease~~indenture or instrument known to such counsel, ~~franchise~~or result in a violation of the Articles or Regulations of the Company (as in effect on the Closing Date) or any order, ~~license~~rule or regulation (also as in effect on the Closing Date) of any court or governmental agency having jurisdiction over the Company, ~~indenture~~and the issuance of the Bonds in accordance with the Indenture and the sale of the Bonds in accordance with this Agreement, ~~permit~~do not and will not result in any violation by the Company of any of the terms or provisions of the Articles or Regulations, ~~mortgage~~or of the Indenture, ~~deed of trust, other evidence of indebtedness~~ or any mortgage or other agreement or instrument known to ~~which the Company or the Significant Subsidiary is a party or~~ such counsel by which the Company ~~or the Significant Subsidiary, or any of their respective owned or leased property~~ is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws);. (xiv) ~~To such counsel's knowledge~~The Indenture is in due and proper form, ~~there are no holders of Common Stock or other securities~~ has been duly and validly authorized by all necessary corporate action, has been duly executed and delivered by the Company, qualified under the 1939 Act, and, assuming due authorization, execution and delivery by the Trustee, the Indenture is a valid and binding instrument of the Company, enforceable in accordance with its terms, except as (i) the enforceability thereof may be limited by bankruptcy, insolvency, or ~~securities that~~ similar laws affecting creditors’ rights generally, and (ii) the rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. (vi) The issue of the Bonds by the Company in accordance with the terms of the Indenture has been duly authorized by all necessary corporate action; when duly executed by the Company, authenticated by the Trustee and delivered to and paid for by the Underwriters pursuant to this Agreement, the Bonds will constitute the legal, valid and binding obligations of the Company enforceable in accordance with their terms, secured by the lien of and entitled to the benefits provided by the Indenture, except as (i) the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting creditors’ rights generally, and (ii) the rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. (vii) The Company has good and marketable title to the properties, rights and assets described in and conveyed by the Indenture and not released by the Trustee from the lien thereof prior to the time of delivery of the Bonds, subject only to the lien of the Indenture and to “permitted liens” as defined in the Indenture; the description in the Indenture of such properties, rights and assets is adequate to constitute the Indenture a lien thereon; the Indenture complies with all applicable laws of the State of Ohio (wherein the properties subjected or intended to be subject to the lien of the Indenture are ~~convertible or exchangeable into Common Stock or other securities~~ located), including all applicable recording laws, and, subject only to the matters referred to above, constitutes a valid and direct first lien on such properties, rights and assets, which include substantially all of the Company’s tangible electric transmission and distribution utility property located in Ohio, together with the Company’s recorded easements and rights of way, franchises, licenses, permits, grants, immunities, privileges and rights that ~~have rights~~ are used or useful in the operation of such property; and all tangible electric transmission and distribution utility property located in Ohio acquired by the Company subsequent to the ~~registration~~ time of ~~such securities under~~ issuance of the ~~Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on~~ Bonds will be subject to the ~~New York Stock Exchange; (xiii) To such counsel's knowledge~~lien of the Indenture, ~~neither the Company nor the Significant Subsidiary is~~subject, ~~nor with the giving of notice or passage of time or both would be~~however, ~~in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company,"~~ to “permitted liens” as ~~such term is~~ defined in the ~~Investment~~ Indenture. (viii) The Indenture other than the Fortieth Supplemental Indenture has been duly filed for record in such manner and in such places as are required by law in order to give constructive notice of, and to establish, preserve and protect the lien of, the Indenture on all property of the Company ~~Act~~ of ~~1940~~every kind referred to in the Indenture as subject to the lien thereof. (ix) Except as referred to in the Pricing Disclosure Package and the Prospectus, ~~as amended. Such counsel shall also state that they have participated~~ there is no action, suit or proceeding, inquiry or investigation, at law or in ~~conferences with officers and other representatives of~~ equity or before or by any court, public board or body, pending or, to such counsel’s knowledge, threatened against or affecting the Company, ~~representatives~~ wherein an unfavorable decision, ruling or finding would (i) materially and adversely affect the condition (financial or otherwise), results of ~~auditors for~~ operations, business or properties of the Company or (ii) materially and ~~representatives~~ adversely affect the transactions contemplated by this Agreement, or which would adversely affect the validity or enforceability of the ~~Underwriters and their counsel during which~~ Indenture or the ~~content of~~ Bonds. The descriptions in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package and the Prospectus of any legal or governmental proceedings are accurate and ~~related matters were discussed and reviewed~~fairly present the information required to be shown, and ~~that, although~~ such counsel does not know of any litigation or any legal or governmental proceeding instituted or threatened against the Company or any of its properties that would be required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus and is not ~~verifying~~so disclosed. (x) An order of the PUCO relating to the issuance of the Bonds has been duly entered and, to such counsel’s knowledge, has not been modified or repealed in any respect and is ~~not passing upon~~ in full force and ~~does not assume~~ effect. The issuance and sale of the Bonds to the Underwriters are in conformity with the terms of such order. Except as may be required under the 1933 Act or the securities or Blue Sky laws of any ~~responsibility~~ jurisdiction, no further consent, approval, authorization or order of, or registration or filing with, any court or governmental or public agency, authority or body is required with respect to the Company for the ~~accuracy~~execution, ~~completeness~~ delivery and performance of this Agreement, the Indenture or ~~fairness~~ the Bonds, the issuance by the Company of the ~~statements contained or incorporated by reference into the Registration Statement~~ Bonds or the ~~Prospectus, on~~ consummation by the ~~basis~~ Company of the ~~information~~ transactions contemplated by this Agreement, the Indenture or the Bonds. In addition, such counsel shall state that ~~was developed in the course of the performance of~~ no facts have come to such ~~services, they~~ counsel’s attention that have ~~no reason~~ caused such counsel to believe that the Registration ~~Statement including any document incorporated by reference therein~~Statement, ~~on its effective date~~at the Applicable Time, contained ~~any~~ an untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, ~~or any amendment or supplement thereto including any document incorporated by reference therein,~~ as of its ~~issue~~ date and as of the Closing Date, contained or contains ~~any~~ an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (~~provided~~ except that in each case such counsel need not express an opinion as to the financial statements and other financial data included or incorporated by reference therein or excluded therefrom). Such counsel shall further state that, in addition, no facts have come to such counsel’s attention that have caused such counsel to believe that the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that such counsel need not express ~~no belief regarding~~ an opinion as to the financial statements and ~~related schedules and~~ other financial data included or ~~statistical data contained in the Registration Statement, any amendment thereto including any document~~ incorporated by reference ~~therein,~~ therein or ~~the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein~~excluded therefrom). To Such counsel shall expressly authorize the ~~extent that any of such opinions are stated~~ Underwriters to ~~be based upon~~ rely on such counsel~~'s knowledge or to be given "~~’s opinion dated the Closing Date delivered to the ~~knowledge of such counsel," such qualification shall signify that no information has come~~ Trustee pursuant to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in questionIndenture. In rendering ~~such~~ the foregoing opinion, such counsel ~~for~~ may state that such counsel does not express any opinion concerning any law other than the ~~Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers~~ laws of the ~~Company~~ State of Ohio and ~~any governmental officials, and copies~~ the Commonwealth of ~~all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date~~Kentucky. (ef) ~~The Representatives~~ You shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇~~sel and Secretary~~▇ ▇▇▇▇ LLC, of counsel to the Company, ~~in their respective capacities as such~~dated the Closing Date, to the effect that: (i) The ~~representations~~ Fortieth Supplemental Indenture has been duly authorized, executed and ~~warranties~~ delivered by the Company, and assuming due authorization, execution and delivery by the Trustee, the Indenture is a valid and binding instrument of the Company ~~set forth~~ enforceable in ~~Section 2 hereof are true and correct~~ accordance with its terms, except as of (i) the ~~date of this Agreement and as of the date of such certificate~~enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally, and (ii) the ~~Company has complied in all material respects with all~~ rights of acceleration and the ~~agreements and satisfied all the conditions to~~ availability of equitable remedies may be ~~performed or satisfied~~ limited by ~~it at or prior to the date~~ equitable principles of ~~such certificate;~~general applicability. (ii) The ~~Commission has not issued an order preventing or suspending~~ Bonds have been duly authorized, and when duly executed by the ~~use~~ Company, authenticated by the Trustee and delivered to and paid for by the Underwriters pursuant to this Agreement, will be valid and binding obligations of the ~~Prospectus~~ Company enforceable in accordance with their terms, except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or ~~any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending~~ similar laws affecting creditors’ rights generally and (ii) the ~~effectiveness~~ rights of acceleration and the ~~Registration Statement has been issued; and to the knowledge~~ availability of ~~the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws~~ equitable remedies may be limited by equitable principles of ~~any jurisdiction;~~general applicability. (iii) ~~Each~~ This Agreement has been duly authorized, executed and delivered by the Company. (iv) The statements made in the Preliminary Prospectus and the Prospectus under the captions “Description of the ~~respective signatories has examined~~ Mortgage Bonds” and “Certain U.S. Federal Income Tax Considerations for Non-U.S. Holders” in each case insofar as such statements constitute summaries of the ~~Registration Statement~~ legal matters, documents or proceedings referred to therein, accurately and fairly summarize the matters referred to therein in all material respects. (v) The Company is not, and solely after giving effect to the offering and sale of the Bonds and the application of the proceeds thereof as described in the Prospectus, will not be subject to registration and ~~any amendment~~ regulation as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended. In rendering the foregoing opinions, such counsel may state that it has relied as to certain factual matters on information obtained from public officials, officers and representatives of the Company and has assumed that the signatures on all documents examined by it are genuine, and that such counsel has not independently verified such factual matters or ~~supplement thereto~~assumptions. In addition, ~~including any~~ such counsel may assume matters governed by New York law. You shall also have received a statement of ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ LLC, dated the Closing Date, to the effect that: (1) no facts have come to such counsel’s attention that have caused such counsel to believe that the documents filed by the Company under the ~~Exchange~~ 1934 Act and ~~deemed to be~~ the 1934 Act Regulations that are incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, were not, on their face, appropriately responsive in all material respects to the requirements of the 1934 Act and the 1934 Act Regulations (except that in each case such ~~documents contain all statements~~ counsel need not express any view as to the financial statements, schedules and other financial information included or incorporated by reference therein or excluded therefrom or the Form T-1); (2) the Registration Statement, at the Applicable Time, and the Prospectus, as of ~~material fact required~~ its date, appeared on their face to be ~~stated therein~~appropriately responsive in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations (except that in each case such counsel need not express any view as to the financial statements, schedules and ~~do not include any~~ other financial information included or incorporated by reference therein or excluded therefrom or the Form T-1); and (3) no facts have come to such counsel’s attention that have caused such counsel to believe that the Registration Statement, at the Applicable Time, contained an untrue statement of a material fact or ~~omit~~ omitted to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, ~~and since the date on which the Registration Statement was initially filed, no event has occurred~~ or that ~~was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set fo~~th

Appears in 1 contract

Sources: Underwriting Agreement (Duke Energy Ohio, Inc.)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of~~ Seller and the ~~date hereof and as of each Closing Date~~Servicer herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Seller and the Servicer made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Seller and the Servicer of ~~its~~ their respective obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) ~~The~~ At the time this Agreement is executed and delivered by the Seller and at the Closing Date, Deloitte & Touche LLP shall have furnished to the Representative letters dated respectively as of the date of this Agreement and as of the Closing Date substantially in the forms of the drafts to which the Representative previously agreed. (b) If the Effective Time of the Initial Registration Statement is not prior to the execution and delivery of this Agreement, such Effective Time shall have ~~been declared effective by the Commission~~ occurred not later than ~~5:30~~ 10:00 p.m., ~~Washington, D.C.~~ New York time, on the date of this ~~Agreement,~~ Agreement or such later ~~time and~~ date as shall have been consented to by the ~~Representatives, which consent shall be deemed to have been given if~~ Representative. If the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement, the Prospectus shall have been ~~declared effective~~ filed with the Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement. If the Effective Time of the Additional Registration Statement (if any) is not prior to the execution and delivery of this Agreement, such Effective Time shall have occurred not later than 10:00 p.m., New York time, on ~~or before~~ the date of this Agreement or, if earlier, the time the Prospectus is printed and ~~time requested in the acceleration request submitted on behalf of the Representatives pursuant~~ distributed to ~~Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act~~ any Underwriter, or shall have occurred at such later date as shall have been ~~timely made;~~ consented to by the Representative. Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Seller, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faith. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the ProspectusCommission. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives You shall have received ~~opinions of Foley & Lardner~~an officers' certificate, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the ~~First Closing Date or the Second~~ Closing Date, as signed by the ~~case may be~~Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of the Seller representing and warranting that, to the ~~effect that: (i) The Company is validly existing~~ best of such officers' knowledge after reasonable investigation, as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the ~~Company consists of 60,000,000 shares of Common Stock~~Closing Date, ~~par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share,~~ the representations and ~~77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock~~ warranties of the ~~Company immediately~~ Seller in this Agreement are true and correct in all material respects, that the Seller has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform Closing Date in all material ~~respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent~~respects, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, that no stop order suspending the effectiveness of ~~the~~ any Registration Statement has been issued and no proceedings for that purpose have been instituted or or, to the best of their knowledge, are ~~threatened~~ contemplated by the Commission. (d) You shall have received an officers' certificate, dated the Closing Date, signed by the Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of the Servicer representing and warranting that, to the best of such officers' knowledge after reasonable investigation, as of the Closing Date, the representations and warranties of the Servicer in this Agreement are true and correct in all material respects, that the Servicer has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date in all material respects, that no stop order suspending the effectiveness of any Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the best of their knowledge, are contemplated by the Commission. (e) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Seller, Nissan Motor Co. Ltd., Nissan North America, Inc. ("NNA") or the Servicer which, in the judgment of the Representative, materially impairs the investment quality of the Notes or makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes; (ii) any downgrading in the rating of any debt securities of NNA or any of its direct or indirect subsidiaries by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any such debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by federal or New York authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes. (f) ▇▇▇ ▇▇▇▇▇, Esq., General Counsel of the Seller, or other counsel satisfactory to the Representative in its reasonable judgment, shall have furnished to the Representative such counsel's written opinion, dated the Closing Date, in substantially the form set forth below, with such changes therein as counsel for the Underwriters shall reasonably agree: (i) The Seller 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, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or the ownership of its property requires such qualification, except where the failure to be in good standing would not have a material adverse effect on the Seller's ability to perform its obligations under the Basic Documents. (ii) The Servicer has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California with corporate power and authority to own its properties and conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or the ownership of its property requires such qualification, except where the failure to be in good standing would not have a material adverse effect on the Servicer's ability to perform its obligations under the Basic Documents. (iii) The Basic Documents have been duly authorized, executed and delivered by each of the Seller and the Servicer, as applicable, and each of the Seller and the Servicer has the corporate power and authority to enter into and perform its respective obligations under the Basic Documents. (iv) The execution, delivery and performance of the Basic Documents by the Seller and the Servicer will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the respective properties or assets of the Seller or the Servicer, pursuant to the terms of the Notes or the charter or bylaws of the Seller or the Servicer, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Seller or the Servicer or any of their respective properties or any material agreement or instrument to which the Seller or the Servicer is a party or by which either the Seller or the Servicer or any of their respective properties is bound. (v) No authorization, approval or consent of any court or governmental agency or authority is necessary in connection with the execution, delivery and performance by the Seller or the Servicer of the Basic Documents to which it is a party, except such as may be required under the Act or the Rules and Regulations and state securities laws, and except for such authorizations, approvals or consents (specified in such opinion) as are in full force and effect as of the Effective Date and the Closing Date. (vi) Nothing has come to such counsel's attention that would cause it to believe that as of the Effective Date and at the Closing Date the Registration Statement and the Prospectus ~~and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement~~ (~~except for~~ other than the financial statements and ~~schedules and~~ the other ~~statistical~~ accounting information contained therein or ~~financial data included therein~~omitted therefrom, as to which such counsel need express no ~~opinion~~belief) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains contain any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements ~~therein~~ therein, in the light of the circumstances under which they were made, not misleading, or that the descriptions therein of statutes and ~~since~~ governmental proceedings and contracts and other documents are inaccurate and do not fairly present the ~~date on which the Registration Statement was initially filed, no event has occurred that was~~ information required to be ~~set forth in~~ shown therein. (vii) Such counsel does not know of any contract or other document of a character required to be filed as an ~~amended or supplemented prospectus or in an amendment~~ exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which is not filed or described as required. (viii) There are no legal or governmental proceedings pending to which the Seller or the Servicer is a party or of which any property of the Seller or the Servicer is the subject, and no such proceedings are known by such counsel to be threatened or contemplated by governmental authorities or threatened by others, (A) that ~~has not been so set fo~~are required to be disclosed in the Registration Statement or

Appears in 1 contract

Sources: Underwriting Agreement (Nissan Auto Receivables Corp /De)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of the ~~Company~~ Seller and the Servicer herein ~~set forth as of~~ on the date hereof and ~~as of each~~ at the Closing Date, to the accuracy of the statements of officers of the ~~Company's officers~~ Seller and the Servicer made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Seller and the Servicer of ~~its~~ their respective obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) ~~The~~ At the time this Agreement is executed and delivered by the Seller and at the Closing Date, Deloitte & Touche LLP shall have furnished to the Representative letters dated respectively as of the date of this Agreement and as of the Closing Date substantially in the forms of the drafts to which the Representative previously agreed. (b) If the time of effectiveness of the Initial Registration Statement is not prior to the execution and delivery of this Agreement, such time of effectiveness shall have ~~been declared effective by the Commission~~ occurred not later than ~~5:30~~ 10:00 p.m., ~~Washington, D.C.~~ New York time, on the date of this ~~Agreement,~~ Agreement or such later ~~time and~~ date as shall have been consented to by the ~~Representatives, which consent shall be deemed to have been given if~~ Representative. If the time of effectiveness of the Initial Registration Statement is prior to the execution and delivery of this Agreement, the Preliminary Prospectus and the Final Prospectus and all amendments and supplements thereto shall have been ~~declared effective~~ filed with the Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement. If the time of effectiveness of the Additional Registration Statement (if any) is not prior to the execution and delivery of this Agreement, such time of effectiveness shall have occurred not later than 10:00 p.m., New York time, on ~~or before~~ the date of this Agreement or, if earlier, (Nissan Underwriting Agreement) the time the Final Prospectus is printed and ~~time requested in the acceleration request submitted on behalf of the Representatives pursuant~~ distributed to ~~Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act~~ any Underwriter, or shall have occurred at such later date as shall have been ~~timely made;~~ consented to by the Representative. Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Seller, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faith. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the ProspectusCommission. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives Underwriters shall have received ~~opinions of Foley & Lardner~~an officers’ certificate, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the ~~First Closing Date or the Second~~ Closing Date, as signed by the ~~case may be~~Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of the Seller representing and warranting that, to the ~~effect that~~best of such officers’ knowledge after reasonable investigation, as of the Closing Date: (i) The ~~Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power~~ representations and ~~authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock~~ warranties of the ~~Company consists of 60,000,000 shares of Common Stock~~Seller in this Agreement are true and correct in all material respects, ~~par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share,~~ that the Seller has complied with all agreements and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform satisfied in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the ~~requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent~~Closing Date, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, that no stop order suspending the effectiveness of ~~the~~ any Registration Statement has been issued and no proceedings for that purpose have been instituted or or, to the best of their knowledge, are ~~threatened~~ contemplated by the Commission~~; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement~~ . (~~except for the financial statements and schedules and other statistical or financial data included~~ ii) Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended and supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of the Seller or any of its affiliates (as such term is defined in Rule 501(b) under the Act) (each, an “Affiliate”), or in the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the terms “material” in this Agreement that refer to the Seller or its Affiliates, or any of them, shall be interpreted in proportion to the business of the Servicer and its consolidated subsidiaries, as a whole, and not in proportion to the business of the Seller or its Affiliate(s) individually. (d) The Underwriters shall have received an officers’ certificate, dated the Closing Date, signed by the Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of the Servicer representing and warranting that, to the best of such ~~counsel need express no opinion~~officers’ knowledge after reasonable investigation, as of the Closing Date: (i) ~~comply as to form~~ The representations and warranties of the Servicer in this Agreement are true and correct in all material ~~respects~~ respects, that the Servicer has complied with all agreements and satisfied, in all material respects, all conditions on its part to be performed or satisfied hereunder at or prior to the ~~requirements~~ Closing Date, that no stop order suspending the effectiveness of any Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the best of their knowledge, are contemplated by the Commission. (ii) Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended and supplemented), in the condition, (Nissan Underwriting Agreement) financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of the Servicer or any of its Affiliates, or the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the terms “material” in this Agreement that refer to the Servicer or its Affiliates, or any of them, shall be interpreted in proportion to the business of the Servicer and its consolidated subsidiaries, as a whole, and not in proportion to the business of the Servicer or its Affiliate(s) individually. (e) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Seller, Nissan Motor Co., Ltd., Nissan North America, Inc. (“NNA”) or the Servicer which, in the judgment of the Representative, materially impairs the investment quality of the Notes or makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes; (ii) any downgrading in the rating of any debt securities of NNA or any of its direct or indirect subsidiaries by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any such debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the ~~conditions~~ New York Stock Exchange or any setting of minimum prices for ~~use~~ trading on such exchange; (iv) any material disruption in commercial banking, securities entitlement or clearance services in the United States; (v) any banking moratorium declared by federal or New York authorities; or (vi) any outbreak or escalation of ~~Form S-3~~major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes. (f) A▇▇▇ ▇▇▇▇, Esq., General Counsel of the Seller and the Servicer, or other counsel satisfactory to the Representative in its reasonable judgment, shall have furnished to the Representative such counsel’s written opinion, dated the Closing Date, in substantially the form set forth in below, with such changes therein as counsel for the ~~General Instructions thereto, have been satisfied;~~Underwriters shall reasonably agree: (~~vii~~i) To Except as to the States of California, New York and Tennessee (for which the opinions relative thereto shall be provided by the outside counsel specified below), the Seller is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or the ownership of its property requires such ~~counsel's knowledge~~qualification, ~~there are no pending or threatened legal or governmental proceedings that are required~~ except where the failure to be ~~described~~ in good standing would not have a material adverse effect on the ~~Registration Statement~~ Seller’s ability to perform its obligations under the Basic Documents. (ii) Except as to the States of California, New York and Tennessee (for which the opinions relative thereto shall be provided by the outside counsel specified below), the Servicer is duly qualified to transact business and is in good standing in each (Nissan Underwriting Agreement) jurisdiction in which the conduct of its business or the ~~Prospectus that are not so described~~ownership of its property requires such qualification, ~~nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required~~ except where the failure to be ~~described~~ in good standing would not have a material adverse effect on the ~~Registration Statement or the Prospectus, or required~~ Servicer’s ability to ~~be filed~~ perform its obligations under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required;Basic Documents. (~~viii~~iii) ~~Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description~~ Each of the ~~Common Stock contained in~~ Seller and the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company Servicer has ~~full~~ all necessary corporate power and authority to ~~enter into~~ execute, deliver and perform ~~this Agreement;~~ its obligations under the Basic Documents to which it is a party. (iv) The execution and delivery by the Servicer and the Seller of each of the Basic Documents to which the Servicer or the Seller is a party and the performance of ~~the Company's~~ their respective obligations ~~hereunder and the consummation of the transactions described herein~~ thereunder have been duly authorized by ~~the Company by~~ all necessary corporate action on the part of the Servicer and ~~this Agreement~~ the Seller, as applicable, and each of the Basic Documents to which each is a party has been duly executed and delivered by it. (v) The execution and ~~on behalf~~ delivery by the Seller and the Servicer of the ~~Company~~Basic Documents and performance by each of them of their respective obligations thereunder will not violate, ~~and~~ result in any breach of any of the terms or provisions of, or constitute (with or without notice or lapse of time or both) a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the properties or assets of the Seller or the Servicer (other than as contemplated by the Basic Documents) pursuant to the terms of (1) the Servicer’s Articles of Incorporation or the Seller’s Certificate of Incorporation, (2) the Servicer’s or the Seller’s By-Laws, (3) any material agreement or instrument to which the Servicer or the Seller is a ~~legal~~party or by which either the Servicer, ~~valid and binding agreement~~ the Seller or any of ~~the Company enforceable against the Company in accordance with its terms~~their respective properties is bound, ~~except that rights to indemnity~~ (4) any statute, rule, regulation or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order ~~or decree~~ of any ~~court, regulatory~~ Texas or federal governmental ~~body, arbitrator, administrative~~ agency or ~~other instrumentality of the United States~~ body or any court having jurisdiction over the ~~Company~~Seller or the Servicer or their respective properties that the undersigned has, in the exercise of customary professional diligence, recognized as applicable to the Servicer or the Seller or to transactions of the type contemplated by the Basic Documents or (5) the Notes. (vi) No authorization, approval, consent, order or permit of any Texas or federal governmental authority is required on the part of the Servicer or the Seller for the execution and delivery of ~~this Agreement or~~ the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument Basic Documents to which ~~the Company or the Significant Subsidiary~~ it is a party ~~or by which~~ and the ~~Company or the Significant Subsidiary, or any~~ performance of their respective ~~owned or leased property is bound~~obligations thereunder, ~~and which is filed or incorporated by reference~~ except such as ~~an exhibit to~~ may be required under the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company Act or the ~~Significant Subsidiary (assuming compliance with all applicable federal~~ Rules and Regulations and state securities laws); , and except for such authorizations, approvals or consents (xispecified in such opinion) ~~To such counsel's knowledge, there~~ as are ~~no holders of Common Stock or other securities~~ in full force and effect as of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content effective date of the Registration Statement and the ~~Prospectus and related matters were discussed and reviewed, and that, although~~ Closing Date. (vii) Nothing has come to such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information counsel’s attention that ~~was developed in the course of the performance of such services, they have no reason~~ would cause him to believe that the Registration Statement ~~including any document incorporated by reference therein,~~ on ~~its~~ the effective ~~date,~~ date thereof contained ~~any~~ an untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not ~~misleading,~~ misleading or that the Preliminary Prospectus~~, or any amendment or supplement thereto including any document incorporated by reference therein~~, as of its ~~issue~~ date and as of the Date of Sale, together with the statements in the Final Prospectus with respect to items identified in the Preliminary Prospectus as to be completed in the Final Prospectus, and the Final Prospectus as of the date of the Prospectus Supplement and as of the Closing ~~Date~~Date (other than the financial statements (Nissan Underwriting Agreement) and the other accounting information contained therein or omitted therefrom, as to which such counsel need express no belief) contained or ~~contains~~ contain any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements ~~therein~~ therein, in the light of the circumstances under which they were made, not misleading, or that the descriptions therein of statutes and ~~since~~ governmental proceedings and contracts and other documents are inaccurate and do not fairly present the ~~date on which the Registration Statement was initially filed, no event has occurred that was~~ information required to be ~~set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set fo~~shown therein.

Appears in 1 contract

Sources: Underwriting Agreement (Nissan Auto Receivables Corp Ii)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of the Company ~~herein set forth as of the date hereof and as of each Closing Date~~herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Company made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Prospectus shall have been ~~declared effective~~ filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for filing by the ~~Commission not later than 5:30 p.m., Washington, D.C. time, on the date of this Agreement, or such later time~~ 1933 Act Regulations and ~~date as~~ in accordance herewith and each Permitted Free Writing Prospectus shall have been ~~consented to~~ filed by the ~~Representatives~~Company with the Commission within the applicable time periods prescribed for such filings by, ~~which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date~~ and ~~time requested~~ otherwise in ~~the acceleration request submitted on behalf~~ compliance with Rule 433 of the ~~Representatives pursuant~~ 1933 Act Regulations. (b) Prior to ~~Rule 461 under~~ the ~~Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made;~~ Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued by and no proceedings for that purpose or pursuant to Section 8A of the ~~Commission or any state securities commission nor~~1933 Act shall have been instituted or, to the knowledge of the ~~Company~~Company or you, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be threatened by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) ~~Subsequent~~ Prior to the ~~execution~~ Closing Date, the rating assigned by ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Ratings Services to any debt securities or preferred stock of the Company as of the date of this ~~Agreement,~~Agreement shall not have been lowered. (id) Since the respective most recent dates as of which information is given in the Prospectus and up to the Closing Date, there shall not have ~~occurred~~ been any material adverse change in the condition of the Company, financial or ~~development involving~~otherwise, except as reflected in or ~~which could be reasonably expected~~ contemplated by the Prospectus, and, since such dates and up to ~~involve~~the Closing Date, ~~a Material Adverse Effect, whether or~~ there shall not ~~arising from~~ have been any material transaction entered into by the Company other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which ~~on the Company,~~ in ~~any such case described in clause (i) or (ii) above,~~ your reasonable judgment is ~~in the reasonable and good faith opinion of the Representatives~~ so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Shares~~ Notes on the terms and in the manner contemplated in by the ~~Registration Statement~~ Pricing Disclosure Package and the Prospectus. (ce) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives You shall have received ~~opinions~~ an opinion of ~~Foley & Lardner, special couns~~▇▇▇▇▇▇ ▇. ▇~~r the Company (as to the matters set forth below in subsections (i)~~▇▇▇▇ III, ~~(ii)~~Esq., ~~(vi), (viii), (ix) and (xiv)), and the Vice President,~~ Associate General Counsel ~~and Secretary~~ of the ~~Company (as to the matters set forth in subsections (iii)~~Company, ~~(iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and~~ dated the ~~First Closing Date or the Second~~ Closing Date~~, as the case may be~~, to the effect that: (i) The Company has been duly organized and is validly existing as a ~~corporation~~ limited liability company in good standing under the ~~laws~~ law of ~~Delaware~~the State of North Carolina, with ~~full corporate~~ power and authority (limited liability company and other) to ~~own, lease and operate~~ own its properties and conduct its business as ~~presently conducted and as~~ described in the Pricing Disclosure Package and the Prospectus and ~~the Registration Statement;~~to enter into and perform its obligations under this Agreement. (ii) The ~~authorized capital stock~~ Company is duly qualified to do business in each jurisdiction in which the ownership or leasing of its property or the conduct of its business requires such qualification, except where the failure to so qualify, considering all such cases in the aggregate, does not have a material adverse effect on the business, properties, financial condition or results of operations of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share;Company. (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the ~~Act~~ 1933 Act, and, to the best of such counsel's ’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened by under the ~~Commission;~~ 1933 Act. (iv) The descriptions in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package and the Prospectus of any legal or governmental proceedings are accurate and fairly present the information required to be shown, and such counsel does not know of any ~~amendment~~ litigation or ~~supplement thereto, including~~ any ~~document incorporated by reference into~~ legal or governmental proceeding instituted or threatened against the Company or any of its properties that would be required to be disclosed in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package or the Prospectus and is not so disclosed. (~~except for~~ v) This Agreement has been duly authorized, executed and delivered by the ~~financial statements~~ Company. (vi) The execution, delivery and ~~schedules~~ performance by the Company of this Agreement, the Indenture and ~~other statistical~~ the Notes will not contravene any of the provisions of the Articles of Organization or ~~financial data included therein~~the Limited Liability Company Operating Agreement of the Company, ~~as to~~ the North Carolina Limited Liability Company Act or any statute or any order, rule or regulation of which such counsel ~~need express no opinion) comply as to form~~ is aware of any court or governmental agency or body having jurisdiction over the Company or any of its property, nor will such action conflict with or result in ~~all material respects with the requirements~~ a breach or violation of any of the ~~Act;~~ 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 ~~conditions for use~~ Company is a party or by which it or its property is bound or to which any of ~~Form S-3~~its property or assets is subject which affects in a material way the Company’s ability to perform its obligations under this Agreement, ~~set forth in~~ the ~~General Instructions thereto, have been satisfied;~~Indenture and the Notes. (vii) To The North Carolina Utilities Commission and The Public Service Commission of South Carolina have issued appropriate orders with respect to the issuance and sale of the Notes in accordance with this Agreement, and, to the best of such counsel's ’s knowledge, ~~there~~ such orders are still in effect; the issuance and sale of the Notes to the Underwriters are in conformity with the terms of such orders; and no ~~pending~~ other authorization, approval or ~~threatened legal~~ consent of any other governmental body (other than in connection or ~~governmental proceedings that are~~ compliance with the provisions of the securities or Blue Sky laws of any jurisdiction) is legally required for the issuance and sale of the Notes pursuant to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required;this Agreement. (viii) ~~Statements set forth in~~ The Indenture has been duly authorized, executed and delivered by the ~~Prospectus under~~ Company and, assuming the ~~heading "Description of Capital Stock," in~~ due authorization, execution and delivery thereof by the ~~description~~ Trustee, constitutes a valid and legally binding instrument of the ~~Common Stock contained~~ Company, enforceable against the Company in ~~the Company's Registration Statement on Form 8-A, filed~~ accordance with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings;its terms. (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein Notes have been duly ~~authorized~~ authorized, executed and issued by the Company and, when authenticated by ~~all necessary corporate action and this Agreement has been duly executed~~ the Trustee, in the manner provided in the Indenture and delivered ~~by and on behalf of the Company~~against payment therefor, ~~and is a legal,~~ will constitute valid and legally binding ~~agreement~~ obligations of the Company enforceable against the Company in accordance with ~~its~~ their terms, ~~except that rights~~ and are entitled to ~~indemnity~~ the benefits afforded by the Indenture in accordance with the terms of the Indenture and the Notes. (x) The North Carolina Utilities Commission and The Public Service Commission of South Carolina have issued appropriate orders with respect to the issuance and sale of the Notes in accordance with this Agreement, and, to the knowledge of such counsel, such orders are still in effect; the issuance and sale of the Notes to the Underwriters are in conformity with the terms of such orders. (xi) No consent, approval, authorization, order, registration or ~~contribution hereunder may be limited by applicable law and except as to enforceability~~ qualification of ~~this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium~~ or ~~other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance~~ with any North Carolina governmental agency or ~~other equitable relief; and~~body or, to such counsel's ’s knowledge, ~~no consent, approval, authorization or other order or decree of~~ any North Carolina court, ~~regulatory~~ which has not been obtained or ~~governmental body~~taken and is not in full force and effect, ~~arbitrator~~is required to authorize, ~~administrative agency~~ or ~~other instrumentality~~ for the Company to consummate the transactions contemplated by this Agreement, except for such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the ~~United States having jurisdiction over~~ Notes by the Underwriters. (xii) The issuance and sale of the Notes by the Company, ~~is required for~~ the execution, delivery and performance by the Company of this Agreement and the execution and delivery of ~~this Agreement or~~ the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement Indenture by the Company will ~~not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of,~~ not breach or result in ~~the breach, modification or termination of, or constitute~~ a default ~~under,~~ under any ~~agreement, lease, franchise, license,~~ indenture~~, permit~~, mortgage, deed of trust, ~~other evidence of indebtedness~~ loan agreement or other agreement or instrument ~~to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is~~ filed or incorporated by reference as an exhibit to the ~~Registration Statement;~~ Annual Report on Form 10-K of the Company for the fiscal year ended December 31, 2006 or ~~(C)~~ identified on Annex A hereto furnished to such counsel by the Company, which the Company has represented lists all indentures, mortgages, deeds of trust, loan agreements or other agreements or instruments that are material to the Company, nor will such action violate the Articles of Organization or the Limited Liability Company Operating Agreement of the Company or any federal or New York statute or any rule or regulation that has been issued pursuant to any federal or New York statute or any order known to such counsel issued pursuant to any federal or New York statute, ~~ordinance, order, rule, decree or regulation of~~ by any ~~court, regulatory~~ court or governmental ~~body, arbitrator, administrative~~ agency or ~~other instrumentality of the United States~~ body having jurisdiction over the Company or any of its properties. Such counsel may state that his opinions in paragraphs (viii) and (ix) are subject to the ~~Significant Subsidiary~~ effects of bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (~~assuming compliance with~~ regardless of whether enforceability is considered in a proceeding in equity or at law). Such counsel shall state that nothing has come to his attention that has caused him to believe that each document incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, when filed, was not, on its face, appropriately responsive, in all ~~applicable federal and state securities laws); (xi) To such counsel's knowledge~~material respects, ~~there are no holders of Common Stock or other securities~~ to the requirements of the ~~Company, or securities that are convertible or exchangeable into Common Stock or other securities of~~ 1934 Act and the ~~Company, that have rights to the registration of such securities under the~~ 1934 Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amendedRegulations. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information nothing has come to his attention that ~~was developed in the course of the performance of such services, they have no reason~~ has caused him to believe that (i) the Registration ~~Statement~~ Statement, including ~~any document incorporated by reference therein~~the Rule 430B Information, as of the filing of the Annual Report on ~~its~~ Form 10-K of the Company for the fiscal year ended December 31, 2006 with the Commission, and at each deemed effective ~~date~~date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations, contained any untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package at the Applicable Time contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) that the ~~Prospectus,~~ Prospectus or any amendment or supplement ~~thereto including any document incorporated by reference therein~~thereto, as of ~~its issue~~ the date it was filed with, or transmitted for filing to, the Commission and ~~as of~~ at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not ~~misleading~~ misleading. Such counsel may also state that, except as otherwise expressly provided in such opinion, he does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in or incorporated by reference into the Registration Statement and the Prospectus and does not express any opinion or belief as to (~~provided that such counsel need express no belief regarding~~ i) the financial statements ~~and related schedules and~~ or other financial ~~or statistical~~ data contained ~~in the Registration Statement, any amendment thereto including any document~~ or incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in ~~such firm who have been involved in the preparation or review of~~ the Registration Statement or the ~~Prospectus that would give them actual current knowledge~~ Prospectus, (ii) the statement of the ~~existence~~ eligibility and qualification of the Trustee included in the Registration Statement or ~~absence of such matter~~ (iii) the information in ~~question.~~ the Prospectus under the caption “Book-Entry System.” In rendering ~~such~~ the foregoing opinion, such counsel ~~for~~ may state that he does not express any opinion concerning any law other than the ~~Company~~ law of the State of North Carolina and may ~~rely, to the extent counsel deems such reliance proper,~~ rely as to all matters of ~~fact upon certificates~~ the law of the State of South Carolina on the opinion of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇, P.A. of Columbia, South Carolina. Such counsel may also state that he has relied as to certain factual matters on information obtained from public officials, officers of the Company and ~~any governmental officials, and copies of all such certificates shall~~ other sources believed by him to be ~~furnished to the Representatives and for the Underwriters on or before each Closing Date~~responsible. (ef) ~~The Representatives~~ You shall have received an opinion of ~~Michael Best & Friedrich LLP~~Skadden, Arps, Slate, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇& ▇▇▇▇ ~~▇▇▇ ▇▇ief Financial Officer~~LLP, ~~and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of~~ counsel to the Company, ~~in their respective capacities as such~~dated the Closing Date, to the effect that: (i) ~~The representations~~ Assuming that the Indenture has been duly authorized, executed and ~~warranties~~ delivered by the Company and is the valid and binding obligation of the Trustee, the Indenture is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms. (ii) Assuming that the Notes have been duly authorized and executed by the Company, when duly authenticated by the Trustee and issued and delivered by the Company against payment therefor in accordance with the terms of this Agreement and the Indenture, the Notes will constitute valid and binding obligations of the Company ~~set forth~~ entitled to the benefits of the Indenture and enforceable against the Company in ~~Section 2 hereof are true~~ accordance with their terms. (iii) The statements made in the Registration Statement, the Pricing Disclosure Package and ~~correct~~ the Prospectus under the captions “Description of the Notes” and “Description of the Senior Notes,” insofar as such statements purport to summarize certain provisions of the Indenture and the Notes, fairly summarize such provisions in all material respects. (iv) No consent, approval, authorization, order, registration or qualification of or with any federal or New York governmental agency or body or, to such counsel’s knowledge, any federal or New York court, which has not been obtained or taken and is not in full force and effect, is required to authorize, or for the Company to consummate the transactions contemplated by this Agreement, except for the registration under the 1933 Act of the Notes, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters. (v) The Company is not and, solely after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Prospectus, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended. You shall also have received a statement of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, dated the Closing Date, to the effect that nothing has come to such counsel’s attention that causes it to believe that: Each filing made by the Company under the 1934 Act and the 1934 Act Regulations that is incorporated by reference in the Prospectus, when filed, appeared on its face, appropriately responsive, in all material respects, to the requirements of the 1934 Act and the 1934 Act Regulations and that each of the Registration Statement and the Pricing Disclosure Package, as of the Applicable Time, and the Prospectus, as of the date of ~~this Agreement and as of~~ the ~~date of such certificate~~prospectus supplement, ~~and the Company has complied~~ appeared on its face, appropriately responsive in all material ~~respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior~~ respects, to the ~~date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use~~ requirements of the ~~Prospectus or~~ 1933 Act and the 1933 Act Regulations (except that in each case such counsel need not express any ~~Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and~~ view as to the ~~knowledge of the respective signatories~~financial statements, ~~no proceedings for that purpose have been initiated~~ schedules and other financial information included or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in therein or excluded therefrom or the Statement of Eligibility on Form T-1 (the “Form T-1”) and no facts have come to such counsel’s attention that have caused such counsel to believe that (i) the Registration Statement, ~~and such documents contain all statements of material fact required to be stated therein~~at the Applicable Time, ~~and do not include any~~ contained an untrue statement of a material fact or ~~omit~~ omitted to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not ~~misleading~~misleading or (ii) the Prospectus, ~~and since~~ as of the date on of the prospectus supplement and as of the Closing Date, contained or contains an untrue statement of a material fact or omits or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that in each case such counsel need not express any view as to the ~~Registration Statement was initially filed~~financial statements, ~~no event has occurred that was required to be set forth~~ schedules and other financial information included or incorporated by reference therein or excluded therefrom, or the statements contained in ~~an amended or supplemented prospectus or in an amendment~~ the exhibits to the Registration ~~Statement~~ Statement, including the Form T-1) In addition, no facts have come to such counsel’s attention that ~~has not been so set fo~~have caused such counsel to believe that the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under whi

Appears in 1 contract

Sources: Underwriting Agreement (Duke Energy Carolinas, LLC)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of each of the ~~Company~~ Trust, the Depositor and NMAC herein ~~set forth as of~~ on the date hereof and ~~as of each Closing~~ at the Series 2017-B Issuance Date, to the accuracy of the statements of officers of the ~~Company's officers~~ Trust, the Depositor and NMAC made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Trust, the Depositor and NMAC of ~~its~~ their respective obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) ~~The~~ On or before the Series 2017-B Issuance Date, a nationally recognized accounting firm who are independent public accountants shall have furnished to the Representative letters dated respectively as of the date of this Agreement and as of the Series 2017-B Issuance Date substantially in the forms of the drafts to which the Representative previously agreed. (b) If the time of effectiveness of the Initial Registration Statement is not prior to the execution and delivery of this Agreement, such time of effectiveness shall have ~~been declared effective by the Commission~~ occurred not later than ~~5:30 p.m.~~10:00 a.m., ~~Washington, D.C.~~ New York time, on the date of this ~~Agreement,~~ Agreement or such later ~~time and~~ date as shall have been consented to by the ~~Representatives, which consent shall be deemed to have been given if~~ Representative. If the time of effectiveness of the Initial Registration Statement is prior to the execution and delivery of this Agreement, the Preliminary Prospectus, the Ratings Free Writing Prospectus and the Final Prospectus and all amendments and supplements thereto shall have been ~~declared effective~~ filed with the Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement. If the time of effectiveness of the Additional Registration Statement (if any) is not prior to the execution and delivery of this Agreement, such time of effectiveness shall have occurred not later than 10:00 a.m., New York time, on ~~or before~~ the date of this Agreement or, if earlier, the time the Final Prospectus is printed and ~~time requested in the acceleration request submitted on behalf of the Representatives pursuant~~ distributed to ~~Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act~~ any Underwriter, or shall have occurred at such later date as shall have been ~~timely made;~~ consented to by the Representative. Prior to the Series 2017-B Issuance Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Depositor, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faith. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the ProspectusCommission. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives Underwriters shall have received ~~opinions of Foley & Lardner~~an officers’ certificate, ~~special couns▇▇ ▇▇r~~ dated the ~~Company (as to~~ Series 2017-B Issuance Date, signed by the ~~matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary~~ Chairman of the ~~Company (as to~~ Board, the ~~matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii)~~ President or any Vice President and ~~(xiii) addressed to the Representatives, as the representatives~~ by a principal financial or accounting officer of the ~~Underwriters,~~ Depositor representing and ~~dated the First Closing Date or the Second Closing Date, as the case may be~~warranting that, to the ~~effect that~~best of such officers’ knowledge after reasonable investigation, as of the Series 2017-B Issuance Date: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock Each of the ~~Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share,~~ representations and ~~77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock~~ warranties of the ~~Company immediately prior to~~ Depositor in this Agreement is true and correct in all material respects, that the ~~sale of the Shares hereunder have been duly authorized~~ Depositor has complied with all agreements and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform satisfied in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the ~~requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent~~Series 2017-B Issuance Date, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, that no stop order suspending the effectiveness of ~~the~~ any Registration Statement has been issued and no proceedings for that purpose have been instituted or or, to the best of their knowledge, are ~~threatened~~ contemplated by the Commission~~; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement~~ . (~~except for the financial statements and schedules and other statistical or financial data included~~ ii) Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended and supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of the Depositor or any of its affiliates (as such term is defined in Rule 501(b) under the Act) (each, an “Affiliate”), or in the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the term “material” in this Agreement that refer to the Depositor or its Affiliates, or any of them, shall be interpreted in proportion to the business of NMAC and its consolidated subsidiaries, as a whole, and not in proportion to the business of the Depositor or its Affiliate(s) individually. (d) The Underwriters shall have received an officers’ certificate, dated the Series 2017-B Issuance Date, signed by the Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of NMAC representing and warranting that, to the best of such ~~counsel need express no opinion~~officers’ knowledge after reasonable investigation, as of the Series 2017-B Issuance Date: (i) ~~comply as to form~~ Each of the representations and warranties of NMAC in this Agreement is true and correct in all material ~~respects~~ respects, that NMAC has complied with all agreements and satisfied, in all material respects, all conditions on its part to be performed or satisfied hereunder at or prior to the ~~requirements~~ Series 2017-B Issuance Date, that no stop order suspending the effectiveness of any Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the best of their knowledge, are contemplated by the Commission. (ii) Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended or supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ~~Act;~~ ordinary course of business, of NMAC or any of its Affiliates, or the ~~conditions for use~~ ability of ~~Form S-3~~such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, ~~set forth~~ all references to the terms “material” in this Agreement that refer to NMAC or its Affiliates, or any of them, shall be interpreted in proportion to the ~~General Instructions thereto~~business of NMAC and its consolidated subsidiaries, ~~have been satisfied;~~as a whole, and not in proportion to the business of NMAC or its Affiliate(s) individually. (~~vii~~e) ~~To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required~~ Subsequent to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this ~~Agreement or the consummation of the transactions contemplated by this Agreement~~ Agreement, there shall not have occurred (~~except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x~~i) ~~The execution, delivery and performance of this Agreement by the Company will not: (A) violate~~ any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiarychange, or any development involving a prospective change, in or affecting particularly the business or properties of ~~their respective owned~~ the Trust, the Depositor, Nissan North America, Inc. (“NNA”) or ~~leased property is bound~~NMAC which, in the judgment of the Representative, materially impairs the investment quality of the Notes or makes it impractical or inadvisable to proceed with completion of the sale of and ~~which is filed or incorporated by reference as an exhibit to~~ payment for the ~~Registration Statement~~Notes; or (Cii) ~~violate~~ any ~~statute, ordinance, order, rule, decree or regulation~~ suspension of trading of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of ~~the Company,~~ NNA on any exchange or in any over-the-counter market; (iii) any suspension or limitation of trading in securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading generally on the New York Stock ~~Exchange;~~Exchange or any setting of minimum prices for trading on such exchange; (iv) any material disruption in commercial banking, securities entitlement or clearance services in the United States; (v) any banking moratorium declared by federal or New York authorities; or (vi) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes. (~~xiii~~f) ~~To such counsel's knowledge~~At the Series 2017-B Issuance Date, ~~neither the Company nor the Significant Subsidiary is~~▇▇▇▇ ▇. ▇▇▇▇, ~~nor with the giving of notice or passage of time or both would be~~Esq., in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives General Counsel of the ~~Company, representatives of auditors for the Company~~ Depositor and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingNMAC, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such other counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "reasonably satisfactory to the ~~knowledge of such counsel," such qualification~~ Representative in its reasonable judgment, shall ~~signify that no information has come to the attention of the attorneys in such firm who~~ have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the ~~Representatives~~ Representative such counsel’s written opinion or opinions, subject to customary qualifications, assumptions, limitations and ~~for~~ exceptions, dated the ~~Underwriters on or before each Closing~~ Series 2017-B Issuance Date, reasonably satisfactory in form and substance to the Representative and its counsel. (eg) ~~The Representatives shall have received an opinion of Michael Best & Friedrich LLP~~At the Series 2017-B Issuance Date, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel to the Depositor and NMAC, shall have furnished to the Representative their written opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated as of the Series 2017-B Issuance Date, in form and substance reasonably satisfactory to the Representative and its counsel, with respect to general corporate matters, tax matters, the validity of the Notes, the Registration Statement, the Final Prospectus, the effectiveness of such Registration Statement and the information contained in each of the Registration Statement and the Final Prospectus. (h) At the Series 2017-B Issuance Date, ▇▇▇▇▇ ▇▇▇▇~~ters~~▇ LLP shall have furnished their written opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated the ~~First Closing Date or the Second Closing~~ Series 2017-B Issuance Date~~, as the case may be~~, with respect to the ~~sale~~ characterization of the ~~Shares hereunder~~transfer of the Receivables by NMAC to the Depositor and with respect to other bankruptcy and perfection of security interest matters and such opinion shall be reasonably satisfactory in form and in substance to the Representative and its counsel. (i) At the Series 2017-B Issuance Date, Sidley Austin LLP, counsel to the ~~Registration Statement~~ Underwriters, shall have furnished their written opinion dated the Series 2017-B Issuance Date, with respect to the validity of the Notes and such other related matters as the ~~Representatives may reasonably~~ Underwriters shall require, and such opinion shall be reasonably satisfactory in form and substance to the ~~Company~~ Representative and its counsel and the Depositor shall have furnished or caused to be furnished to such counsel such documents ~~and shall have exhibited to them such papers and records~~ as ~~such counsel~~ they may reasonably request for the purpose of enabling them to pass upon such matters. (fj) ~~The Representatives shall have received on each Closing~~ At the Series 2017-B Issuance Date, ~~a certificate of Kenneth W. Krueger, Senior Vic▇~~ ▇▇▇▇▇▇▇▇▇ , ▇▇▇▇▇▇ & Finger, counsel to the Trust and the Owner Trustee, shall have furnished their written opinion to you, the Depositor and the Servicer, dated the Series 2017-B Issuance Date and reasonably satisfactory in form and substance to the Representative and its counsel. (k) At the Series 2017-B Issuance Date, ▇▇~~ief Financial Officer~~▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, counsel to the Indenture Trustee, shall have furnished their written opinion dated as of Series 2017-B Issuance Date and ~~W. David Romoser~~reasonably satisfactory in form and substance to the Representative and its counsel. (l) At the Series 2017-B Issuance Date, in-house counsel to the Asset Representations Reviewer, shall have furnished such counsel’s written opinion dated as of Series 2017-B Issuance Date and reasonably satisfactory in form and substance to the Representative and its counsel. (m) The Representative shall have received an officer’s certificate dated the 2017-B Issuance Date of the Chairman of the Board, the President or any Vice ~~President~~President and by a principal financial or accounting officer of each of the Depositor and NMAC in which each such officer shall state that, to the best of such officer’s knowledge after reasonable investigation, the representations and warranties of the Depositor or NMAC, as applicable, contained in the Transfer and Servicing Agreement and the representations and warranties of NMAC or the Depositor, as applicable, contained in the Receivables Purchase Agreement are true and correct in all material respects and that the Depositor or NMAC, as applicable, has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Series 2017-B Issuance Date in all material respects. (n) At the Series 2017-B Issuance Date, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇~~sel and Secretary~~▇▇ & ▇▇▇▇▇, ~~of the Company~~LLP, ~~in their respective capacities as such,~~ special Tennessee counsel to the ~~effect that:~~Depositor and NMAC, shall have furnished their written opinion dated as of Series 2017-B Issuance Date and reasonably satisfactory in form and substance to the Underwriters and their counsel. (io) The ~~representations and warranties~~ Representative shall have received evidence of ratings letters that assign the ~~Company set forth~~ ratings to the Notes as specified in ~~Section 2 hereof are true and correct as of~~ the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at Ratings Free Writing Prospectus. (p) On or prior to the ~~date of such certificate; (ii) The Commission has not issued an order preventing or suspending~~ Series 2017-B Issuance Date, the ~~use of~~ Trust, the ~~Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued;~~ Depositor and NMAC shall have furnished to the ~~knowledge of~~ Underwriters such further certificates and documents as the ~~respective signatories, no proceedings for that purpose~~ Underwriters shall reasonably have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set forequired.

Appears in 1 contract

Sources: Underwriting Agreement (Nissan Master Owner Trust Receivables)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject ~~to the accuracy~~ that each of the ~~representations~~ Registration Statement, the ADS Registration Statement and ~~warranties~~ the Exchange Act Registration Statement shall have become effective not later than [12:00 p.m.] (New York City time) on ~~the part of the Company herein set forth as of~~ the date hereof and as of each Closing Date, to the accuracy of the statements of the Company's officers made pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder, and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement shall have been declared effective by~~ representations and warranties of the ~~Commission not later than 5:30 p.m., Washington, D.C. time, on the date of~~ Company contained in this ~~Agreement, or such later time~~ Agreement and ~~date as shall have been consented~~ any certificates delivered pursuant to ~~by the Representatives, which consent~~ this Agreement shall be ~~deemed~~ true and correct as of the Closing Date, and the Company has complied with all of the agreements, performed all of its obligations and satisfied all of the conditions hereunder on its part that are required to ~~have been given if the Registration Statement shall have been declared effective~~ be complied with, performed or satisfied on or before the ~~date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b~~Closing Date. (b) ~~and 430A under the Act~~ The Final Prospectus shall have been ~~timely made;~~ filed with the Commission in accordance with the Rules and Regulations and Section 5(A)(a) hereof. Prior to such Closing Date, no stop order suspending the effectiveness of ~~the~~ a Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred any ~~change or development involving~~change, or ~~which could be reasonably expected to involve~~any development involving a prospective change, ~~a Material Adverse Effect, whether or not arising from transactions~~ in the ~~ordinary course~~ condition, financial or otherwise, or in the earnings, business or operations of ~~business, and (ii)~~ the Company ~~shall not have sustained any loss or interference from any labor dispute~~and its Controlled Entities, ~~strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having~~ taken as a ~~Material Adverse Effect~~whole, the effect of which ~~on the Company, in any such case described in clause (i) or (ii) above, is~~ in the ~~reasonable and good faith opinion~~ sole judgment of the Representatives ~~so material and adverse as to make~~ makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Offered Securities on the Closing Date or the Additional Closing Date, as the case may be, on the terms and in the manner contemplated by this Agreement. (d) There shall not be any adverse legislative or regulatory developments in the PRC, including but not limited to the M&A Rules and Related Clarifications and laws, rules and regulations that would affect the validity and enforceability of the VIE Agreements, which in the sole judgment of the Representatives would make it inadvisable or impractical to proceed with the public offering or the delivery of the ~~Shares~~ Offered Securities at the First Closing Date or the Additional Closing Date, as the case may be, on the terms and in the manner contemplated in ~~the Registration Statement and the Prospectus. (c) The Representatives~~ this Agreement. There shall not ~~have advised the Company that the Registration Statement~~ be any litigation, proceedings, investigations, processes for administrative sanctions or ~~Prospectus contains an untrue statement of fact that~~other actions initiated or threatened by any governmental agency before any governmental agency, in each case with due authority, against or involving any party hereto, in the ~~reasonable~~ PRC or elsewhere, that seeks to declare non-compliance, unlawful or illegal, under PRC laws, rules and ~~good faith opinion~~ regulations, the VIE Agreements, the issuance and sales of the ~~Representatives~~ Offered Shares and ADSs, the listing and trading of the ADSs on the NYSE or ~~counsel for~~ the ~~Underwriters, is material or omits to state a fact that~~transactions contemplated by this Agreement and the Deposit Agreement the effect of which, in the ~~reasonable and good faith opinion~~ judgment of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives shall have received opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as makes it impracticable or inadvisable to proceed with the ~~representatives~~ offering, sale or delivery of the ~~Underwriters, and dated~~ Offered Securities on the ~~First~~ Closing Date or the ~~Second~~ Optional Closing Date, as the case may be, to on the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, terms and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions manner contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing DateAgreement. (e) The Representatives shall have received letters, dated, respectively, the date hereof and each Closing Date, of Deloitte Touche Tohmatsu, confirming that they are a registered public accounting firm and independent public accountants within the meaning of the Securities Laws and substantially in form and substance satisfactory to the Underwriters, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Final Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof. (f) The Representatives shall have received an opinion, dated such Closing Date, of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, United States counsel for the Company, dated the Closing Date, in form and substance satisfactory to the Representatives, and substantially in the form of Exhibit A hereto. (g) The Company shall have received an opinion from Han Kun Law Offices, PRC counsel for the Company, dated the Closing Date, in form and substance satisfactory to the Underwriters, and substantially in the form set forth in Exhibit B hereto. A copy of ~~Michael Best & Friedrich LLP~~such opinion shall have been provided to the Representatives with consent from such counsel. (h) The Representatives shall have received an opinion from ▇▇▇▇▇ ▇▇▇▇▇▇▇, Cayman Islands counsel for the Company, dated such Closing Date, in form and substance satisfactory to the Underwriters, and substantially in the form set forth in Exhibit C hereto. (i) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ~~the~~ & ▇▇▇▇▇▇▇~~▇ters~~▇ LLP, United States counsel for the Underwriters, such opinion or opinions, dated ~~the First Closing Date or the Second~~ such Closing Date~~, as the case may be~~, with respect to ~~the sale of the Shares hereunder, the Registration Statement and other related~~ such matters as the Representatives may ~~reasonably~~ require, and the Company shall have furnished to such counsel such documents ~~and shall have exhibited to them such papers and records~~ as ~~such counsel reasonably~~ they request for the purpose of enabling them to pass upon such matters. (fj) The Representatives shall have received ~~on each~~ from Fangda Partners, PRC counsel for the Underwriters, such opinion or opinions, dated such Closing Date, ~~a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer~~with respect to such matters as the Representatives may require, and ~~W. David Romoser~~the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (k) The Representatives shall have received an opinion from White & Case LLP, ~~Vice President~~counsel for the Depositary, ~~▇▇▇▇▇▇▇ ▇▇▇▇sel~~ in form and ~~Secretary~~substance satisfactory to the Representatives, and substantially in the form set forth in Exhibit D hereto. (l) The Company shall have furnished or caused to be furnished to the Representatives certificates of executive and principal financial or accounting officers of the Company, ~~in their respective capacities as such~~dated such Closing Date, satisfactory to the ~~effect that:~~ Representatives, in which such officers shall represent as follows: (i) ~~The~~ the representations and warranties of the Company ~~set forth~~ in ~~Section 2 hereof~~ this Agreement are true and ~~correct as of the date of this Agreement and as of the date of such certificate, and~~ correct; the Company has complied ~~in all material respects~~ with all ~~the~~ agreements and satisfied all ~~the~~ conditions on its part to be performed or satisfied ~~by it~~ hereunder at or prior to ~~the date of~~ such ~~certificate;~~ Closing Date, (ii) ~~The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto;~~ no stop order suspending the effectiveness of ~~the~~ any Registration Statement has been ~~issued;~~ issued and ~~to the knowledge of the respective signatories,~~ no proceedings for that purpose have been ~~initiated or~~ instituted or, to the best of their knowledge, are ~~pending under~~ contemplated by the ~~Act or under the Blue Sky Laws of any jurisdiction;~~ Commission, (iii) ~~Each~~ the Additional Registration Statement (if any) satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was timely filed pursuant to Rule 462(b), including payment of the ~~respective signatories has examined~~ applicable filing fee in accordance with Rule 111(a) or (b) of Regulation S-T of the ~~Registration Statement and~~ Commission, (iv) subsequent to the ~~Prospectus, and any amendment or supplement thereto, including any documents filed under~~ date of the ~~Exchange Act and deemed to be incorporated by reference~~ most recent financial statements in the Registration Statement, the General Disclosure Package and the Final Prospectus, there has been no development or event having a Material Adverse Effect, or any development or event involving a prospective change that is reasonably likely to have a Material Adverse Effect except as set forth in the General Disclosure Package or as described in such certificate, and (v) such other matters as the Representatives may reasonably request. (m) On or prior to the date hereof, the Representatives shall have received lock-up letters from each of the directors, executive officers, existing shareholders of the Company (a list of which is set forth in Schedule C), each substantially in the form and substance set forth in Exhibit E. (n) The Company and the Depositary shall have executed and delivered the Deposit Agreement and the Deposit Agreement shall be in full force and effect and the Company and the Depositary shall have taken all action necessary to permit the deposit of the Offered Shares and the issuance of the Offered Securities in accordance with the Deposit Agreement. (o) The Depositary shall have furnished or caused to be furnished to the Representatives at such Closing Date, certificates satisfactory to the Representatives evidencing the deposit with it of the Offered Shares being so deposited against issuance of the Offered Securities to be delivered by the Company at such Closing Date, and the execution, countersignature (if applicable), issuance and delivery of such Offered Securities pursuant to the Deposit Agreement and such other matters related thereto as the Representatives may reasonably request. (p) The Company shall have entered into a side letter agreement with the Depositary, substantially in the form and substance set forth in Exhibit F hereto (the “Depositary Letter”), instructing the Depositary, for a period of 180 days after the date of the Final Prospectus, not to accept any deposit by the persons specified therein of any Ordinary Shares in the Company’s ADR facility or issue any new ADSs to any such person subject to the exceptions stated in the Depositary Letter or further instructions by the Company. (q) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereunder. (r) No Issuer Free Writing Prospectus, Statutory Prospectus or amendment or supplement to the Registration Statement, the ADS Registration Statement or the Final Prospectus shall have been filed to which the Representatives shall have objected in writing. (s) The Offered Securities shall have been approved to be listed on the NYSE. The Company will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents ~~contain all statements of material fact~~ as the Representatives may reasonably request. If any condition specified in this Section shall not have been fulfilled when and as required to be ~~stated therein~~fulfilled, this Agreement, or, in the case of any condition to the purchase of Optional Securities on a Optional Closing Date which is after the First Closing Date, the obligations of the several Underwriters to purchase the relevant Optional Securities shall be deemed terminated by the Company at any time at or prior to the First Closing Date or such Optional Closing Date, as the case may be, unless as otherwise provided, and ~~do not include~~ such termination shall be without liability of any ~~untrue statement~~ party to any other party except as provided in Section 11. Notwithstanding the immediately preceding paragraph, the Representatives may in their sole discretion waive on behalf of ~~a material fact or omit to state~~ the Underwriters compliance with any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment conditions to the ~~Registration Statement that has not been so set fo~~obligations of the Underwriters hereunder, whether in respect of an Optional Closing Date or otherwise.

Appears in 1 contract

Sources: Underwriting Agreement (Vipshop Holdings LTD)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Securities on the Closing Date will be subject to the accuracy when made and on the Closing Date of the representations and warranties on the part of the Company ~~herein set forth as of the date hereof and as of each Closing Date~~herein, to the accuracy of the statements of the ~~Company's~~ Company officers made pursuant to the provisions hereof, to the performance by the Company in all material respects ~~by the Company~~ of its respective obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Representatives shall have ~~been declared effective by the Commission not later than 5:30 p.m., Washington, D.C. time~~received, on the date hereof and on the Closing Date, a letter dated such date, in form and substance satisfactory to you, from Ernst & Young LLP, an independent registered public accounting firm with respect to the Company, containing the information and statements of ~~this Agreement~~the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statement, ~~or such later time~~ the Prospectus and ~~date as~~ the Time of Sale Information. (b) The Prospectus shall have been ~~consented~~ filed with the Commission in accordance with the Rules and Regulations and Section 5(a) hereof. The Company shall not have received any notice of objection of the Commission to by the ~~Representatives, which consent shall be deemed to have been given if~~ use of the Registration Statement ~~shall have been declared~~ or any post-effective ~~on or before the date and time requested in the acceleration request submitted on behalf of the Representatives~~ amendment thereto pursuant to Rule ~~461~~ 401(g)(2) under the Act~~; all filings required by Rules 424(b) and 430A under the Act shall have been timely made;~~ , no stop order suspending the effectiveness of the Registration Statement shall have been issued by and no proceedings for that purpose or pursuant to Section 8A under the ~~Commission or any state securities commission nor~~Act shall have been instituted or, to the knowledge of the ~~Company~~Company or any Underwriter, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) any change, or any development or event involving a prospective change, in the condition (~~ii) above~~financial or other), is business, properties or results of operations of the Company and its subsidiaries taken as one enterprise that, in the reasonable ~~and good faith opinion~~ judgment of the ~~Representatives so~~ Representatives, is material and adverse ~~as to make~~ and makes it ~~impracticable~~ impractical or inadvisable to proceed with completion of the public offering or the ~~delivery~~ sale of and payment for the Securities; (ii) any downgrading in the rating of any debt securities of the ~~Shares on~~ Company or Hovnanian by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the ~~terms and in the manner contemplated in the Registration Statement and the Prospectus. (c) The Representatives shall not have advised~~ Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of Hovnanian or the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the ~~Registration Statement~~ Company or ~~Prospectus contains an untrue statement of fact that~~Hovnanian has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable ~~and good faith opinion~~ judgment of the ~~Representatives~~ Representatives, be likely to prejudice materially the success of the proposed issue, sale or ~~counsel~~ distribution of the Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of Hovnanian or the ~~Underwriters, is material~~ Company on any exchange or ~~omits to state a fact that~~in the over-the-counter market; (v) any banking moratorium declared by U.S. Federal or New York authorities; (vi) any major disruption of settlements of securities or clearance services in the United States if, in the reasonable ~~and good faith opinion~~ judgment of the ~~Representatives~~ Representatives, the effect of such disruption makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Securities; or (vii) any attack on, outbreak or escalation of hostilities or act of terrorism involving, the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the reasonable judgment of the Representatives, the effect of any such ~~counsel~~attack, ~~is material~~ outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and ~~is required to be stated therein or necessary to make~~ payment for the ~~statements therein not misleading~~Securities. (d) The Representatives shall have received ~~opinions~~ an opinion of ~~Foley & Lardner~~▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ~~special couns~~Esq., Senior Vice President and General Counsel of the Company, dated the Closing Date, substantially to the effect as set forth in Exhibit A. (e) The Representatives shall have received an opinion and a negative assurance statement, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇▇r ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the ~~Company (as~~ Company, substantially to the ~~matters~~ effect as set forth ~~below~~ in ~~subsections~~ Exhibits B-1 and B-2, respectively. (i)f) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, an opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters. (~~ii)~~g) The Representatives shall have received a certificate, ~~(vi)~~dated the Closing Date and signed by J. ▇▇▇▇▇ ▇▇▇▇▇▇, ~~(viii), (ix)~~ in his capacity as Executive Vice President and ~~(xiv)), and the Vice President, General Counsel and Secretary~~ Chief Financial Officer of the Company (~~as to~~ i) confirming the matters set forth in ~~subsections (iii~~Sections 2(v), 2(w) and 2(x), (~~iv), (v), (vii), (x), (xi), (xii~~ii) confirming that all the representations and ~~(xiii) addressed to the Representatives, as the representatives~~ warranties of the ~~Underwriters,~~ Company and ~~dated~~ its subsidiaries herein contained are true and correct on the ~~First~~ Closing Date or with the ~~Second~~ same force and effect as if made on and as of the Closing Date, as the case may be, to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) ~~The issued and outstanding shares of capital stock~~ that, in all material respects, the Company has complied with all of the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied by the Company ~~immediately~~ on or prior to the ~~sale of the Shares hereunder have been duly authorized and validly issued~~Closing Date, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) ~~The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority~~ to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's his knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or pursuant to Section 8A under the Act have been instituted or ~~are threatened~~ re contemplated by the ~~Commission;~~ Commission and (v) since the ~~Registration Statement and~~ date of the ~~Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the~~ most recent financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the ~~Registration Statement~~ Time of Sale Information and the Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the business, prospects, financial condition or results of operations of the Company and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Time of Sale Information and the Prospectus (exclusive of any supplement thereto). (h) The Representatives shall have received lockup letters in the form of Exhibit D hereto from each of the executive officers and directors of the Company. (i) The Representatives shall have received on the date hereof and on the Closing Date a certificate, dated such date, signed by the ~~Act~~Chief Executive Officer and by the Executive Vice President and Chief Financial Officer of the Company, ~~which is not described~~in form and substance satisfactory to you, ~~filed or incorporated by reference required; (viii) Statements~~ certifying after reasonable investigation that to their knowledge the information set forth in the ~~Prospectus~~ Time of Sale Information and the Prospectus, under the ~~heading "Description of Capital Stock,"~~ caption “Prospectus Supplement Summary — Preliminary Financial Results” is accurate in all material respects at the ~~description of~~ respective dates and for the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings;respective periods indicated. (ixj) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein Securities shall have been ~~duly authorized by the Company by all necessary corporate action~~ listed and ~~this Agreement has been duly executed~~ admitted and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange~~; (xiii) To~~ , and satisfactory evidence of such ~~counsel's knowledge, neither~~ actions shall have been provided to the ~~Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv)~~ Representatives. The Company ~~is not an "investment company,"~~ will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as ~~such term is defined~~ the Representatives reasonably request. The Representatives may in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives their sole discretion waive on behalf of the Underwriters ~~and their counsel during which~~ compliance with any conditions to the ~~content~~ obligations of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters ~~on or before each Closing Date~~hereunder. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set fo

Appears in 1 contract

Sources: Underwriting Agreement (Hovnanian Enterprises Inc)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement~~ to purchase and pay for the Firm Common Shares on the First Closing Date and the Optional Common Shares on the Second Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company and the Parent herein set forth as of the date hereof and as of ~~each~~ the First Closing Date or the Second Closing Date, as the case may be, to the accuracy of the statements of ~~the~~ Company's officers and the Parent made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company and the Parent of ~~its~~ their respective obligations hereunder, and to the following additional conditions~~, unless waived in writing by the Representatives~~: (a) The Registration Statement shall have ~~been declared~~ become effective ~~by the Commission~~ not later than ~~5:30~~ 5:00 p.m.(or, in the case of a registration statement filed pursuant to Rule 462(b) of the Rules and Regulations relating to the Common Shares, not later than 10:00 p.m.), Washington, D.C. ~~time~~Time, on the date of this Agreement, or at such later time ~~and date~~ as shall have been consented to by ~~the Representatives, which consent shall be deemed to have been given~~ you; if the ~~Registration Statement~~ filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b) of the Rules and Regulations, the Prospectus shall have been ~~declared effective on or before the date and time requested~~ filed in the ~~acceleration request submitted on behalf~~ manner and within the time period required by Rule 424(b) of the ~~Representatives pursuant~~ Rules and Regulations; and prior to ~~Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made;~~ such Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission~~ and no proceedings for that purpose shall have been instituted or ~~any state securities commission nor~~shall be pending or, to the knowledge of the Company, the Parent or you, shall ~~any proceedings for that purpose have been instituted or threatened~~be contemplated by the Commission; and any request of the Commission ~~or any state securities commission~~ for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to ~~the reasonable satisfaction of the Representatives acting in good faith~~your satisfaction. (b) ~~Subsequent to~~ You shall be satisfied that since the ~~execution~~ respective dates as of ~~this Agreement,~~ which information is given in the Registration Statement and Prospectus, (i) except as disclosed in the Prospectus, there shall not have ~~occurred~~ been any change in the capital stock or ~~development involving~~any material change in the indebtedness (other than in the ordinary course of business) of the Company, (ii) except as set forth or contemplated by the Registration Statement or the Prospectus, no material verbal or written agreement or other transaction shall have been entered into by the Company, which ~~could be reasonably expected to involve, a Material Adverse Effect, whether or~~ is not ~~arising from transactions~~ in the ordinary course of business, ~~and~~ (iiiii) ~~the Company shall not have sustained any~~ no loss or ~~interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity~~ damage (whether or not insured) ~~or from any court or governmental action, order or decree having a Material Adverse Effect,~~ to the ~~effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion~~ property of the ~~Representatives so material~~ Company shall have been sustained which materially and ~~adverse as to make it impracticable or inadvisable to proceed with~~ adversely affects the ~~public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.~~condition (c) ~~The Representatives~~ There shall ~~not~~ have ~~advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that~~been furnished to you on each Closing Date, in ~~the reasonable~~ form and ~~good faith~~ substance satisfactory to you, except as otherwise expressly provided below: (i) An opinion of ~~the Representatives or counsel for the Underwriters~~Brob▇▇▇, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives shall have received opinions of Foley ▇▇le▇▇▇ & ~~Lardner, special couns~~▇arr▇▇▇▇ ▇▇r ▇ counsel for the Company ~~(as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)),~~ and the ~~Vice President~~Parent, ~~General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii)~~ addressed to the ~~Representatives, as the representatives of the Underwriters,~~ Underwriters and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that: (i1) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware. The Subsidiary is duly formed and validly existing under the laws of the United Kingdom. The Company is duly qualified to do business as a foreign corporation in the State of California. To our knowledge, ~~with full~~ there are no other jurisdictions where the ownership or leasing of properties or the conduct of its business requires such qualification, except for jurisdictions in which the failure to so qualify would not have a material adverse effect on the business, results and operations or the financial condition of the Company and the Subsidiary, taken as a whole. The Company has corporate power and authority to ~~own, lease and operate~~ own its properties and conduct its business as ~~presently conducted and as~~ described in ~~the Prospectus and~~ the Registration Statement; (ii2) The authorized issued and outstanding capital stock of the Company ~~consists~~ conforms in all material respects to the description of ~~60,000,000 shares~~ the capital stock set forth under the caption "Capitalization" in the Prospectus; immediately upon consummation of ~~Common Stock~~the Offering, ~~par value $1.00 per share~~to our knowledge, ~~14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The~~ the Parent will own all the issued and outstanding shares of ~~capital stock~~ Common Stock which are not sold in the Offering; all necessary and proper corporate proceedings have been taken in order to validly authorize such Common Stock; all outstanding shares of Common Stock (including the ~~Company immediately prior to the sale of the~~ Firm Common Shares ~~hereunder~~ and any Optional Common Shares) have been duly ~~authorized~~ and validly issued, are fully paid and ~~nonassessable~~ nonassessable, have been issued in compliance with the registration and qualification requirements of federal and state securities laws (~~except, to~~ other than as may be required by state securities laws for the ~~extent applicable~~Common Shares, as ~~otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted~~to which such counsel need express no opinion), ~~and~~were not issued in violation of or subject to any preemptive rights or, to such counsel's knowledge~~, there are no preemptive, preferential or, except as described in the Prospectus~~, other rights to subscribe for or purchase any ~~shares of capital stock~~ of the ~~Company and,~~ Common Shares to ~~such counsel's knowledge, no shares of capital stock of~~ be sold by the Company ~~have been issued in violation of such rights~~hereunder; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v3) The certificates ~~for~~ evidencing the Common Shares to be delivered hereunder ~~conform~~ are in ~~all material respects to the requirements of the~~ due and proper form under Delaware ~~General Corporation Law and the rules and regulations of the New York Stock Exchange;~~ law, and when duly countersigned by the Company's transfer ~~agent~~agent and registrar, and delivered to ~~the Representatives~~ you or upon ~~the~~ your order ~~of the Representatives~~ against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Common Shares represented thereby will be duly authorized and validly issued, fully paid and ~~nonassessable~~ nonassessable, and will conform in all respects to the description thereof set forth under the caption "Description of Securities" in the Prospectus; (~~except~~4) Except as disclosed in or specifically contemplated by the Prospectus, to such counsel's knowledge, there are no outstanding options, warrants or other rights calling for the ~~extent applicable~~issuance of, ~~as otherwise provided in Section 180.0622(2)(b~~and no commitments, plans or arrangements to issue, any shares of capital stock (including, without limitation, the Common Shares) of the ~~Wisconsin Business Corporation Law, as judicially interpreted)~~Company or any security convertible into or exchangeable for capital stock of the Company; (via) The Registration Statement has become effective under the ~~Act and~~Act, and to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement or preventing the use of the Prospectus has been issued and no proceedings for that purpose have been instituted or are pending or threatened by the Commission; any required filing of the Prospectus and any supplement thereto pursuant to Rule 424(b) and 462(b) of the Rules and Regulations has been made in the manner and within the time period required by such Rule 424(b) or 462(b); (b) The Registration Statement and the Prospectus ~~and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement~~ (except for the financial statements and schedules and other financial and statistical ~~or financial~~ data included ~~therein,~~ therein as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the ~~Act;~~ Act and the ~~conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied~~Rules and Regulations; (~~vii~~c) To such counsel's knowledge, there are no franchises, leases, contracts, agreements or documents which are of a character required to be disclosed in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement, which are not disclosed or filed as required; and (d) To such counsel's knowledge, there are no legal or governmental actions, suits or proceedings pending or threatened ~~legal or governmental proceedings that~~ against the Company which are required to be described in the ~~Registration Statement or the~~ Prospectus ~~that~~ which are not ~~so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be~~ described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as ~~an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference~~ required;. (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix6) The Company has ~~full~~ all requisite corporate power and authority to enter into this Agreement and ~~perform~~ to sell and deliver the Common Shares to be sold by it to the several Underwriters; this ~~Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have~~ Agreement has been duly and validly authorized ~~by the Company~~ by all necessary corporate action ~~and this Agreement~~ by the Company, has been duly and validly executed and delivered by and on behalf of the Company, and is a ~~legal,~~ valid and binding agreement of the ~~Company~~ Company, enforceable ~~against the Company~~ in accordance with its terms, except ~~that rights to indemnity or contribution hereunder~~ as enforceability may be limited by ~~applicable law and except as to enforceability of this Agreement may be limited by~~ general equitable principles, bankruptcy, insolvency, reorganization, moratorium or other ~~similar~~ laws affecting creditors' rights ~~generally~~generally and except as to those provisions relating to indemnity or contribution for liabilities arising under the Act as to which no opinion need be expressed; and no approval, ~~and by equitable principles limiting the right to specific performance~~ authorization, order, consent, filing, license or permit of or with any court, regulatory, administrative or other ~~equitable relief; and~~governmental body is required for the execution and delivery of this Agreement by the Company or the performance by the Company of its obligations contemplated by this Agreement to be performed at the time of closing, except such as have been obtained and are in full force and effect under the Act and such as may be required under applicable Blue Sky laws in connection with the purchase and distribution of the Common Shares by the Underwriters and the clearance of such offering with the NASD; (7) The execution and delivery of this Agreement by the Company and the Parent and the performance by the Company of its obligations thereunder contemplated by the Agreement to be performed at the time of the closing will not conflict with, result in the breach of, or constitute, either by itself or upon notice or the passage of time or both, a default under, any agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument filed as an exhibit to the Registration Statement or violate any of the provisions of the certificate of incorporation or bylaws of the Company or, to such counsel's knowledge, violate any (i) judgment, decree or order, which has been entered against the Company or (ii) any statute, rule or regulation of any court or governmental body having jurisdiction over the Company or any of its properties; (8) To such counsel's knowledge, the Company is not in violation of its certificate of incorporation or any material provision if its bylaws; (9) To such counsel's knowledge, no ~~consent~~holders of securities of the Company have rights which have not been waived to the registration of shares of Common Stock or other securities, because of the filing of the Registration Statement by the Company or the offering contemplated by the Agreement; (10) The statements in the Registration Statement and Prospectus under the captions "Management," "Relationship between the Company and Odetics" and "Description of Securities" and in the Registration Statement in Items 14 and 15, insofar as they are descriptions of contracts, agreements or other legal documents are accurate descriptions of such documents in all material respects; (11) The statements in the Registration Statement and Prospectus under the captions "Shares Eligible for Future Sale" and "Description of Securities" insofar as they constitute matters of law, are an accurate summary in all material respects; (12) The Parent has all requisite corporate power and authority to enter into this Agreement. This Agreement has been duly authorized, executed and delivered by or on behalf of the Parent; the execution and performance of this Agreement by the Parent and the consummation of the transactions to be performed by Parent at the time of closing will not violate any provision of the Certificate of Incorporation or Bylaws of the Parent and no approval, ~~authorization or other~~ authorization, order or ~~decree~~ consent of any court, regulatory ~~or governmental~~ body~~, arbitrator~~, administrative agency or other ~~instrumentality of the United States having jurisdiction over the Company,~~ governmental body is required for the execution and delivery of this Agreement or the ~~consummation~~ performance by the Parent of ~~the transactions~~ its obligations contemplated by this Agreement (to be performed at the time of closing, except ~~for compliance with~~ such as have been obtained and are in full force and effect under the ~~Act,~~ Act and such as may be required under the ~~Exchange Act,~~ rules of the NASD and applicable Blue Sky ~~Laws and the clearance of the underwriting arrangements with the NASD)~~laws; (x13) ~~The execution, delivery~~ This Agreement constitutes a valid and ~~performance of this Agreement by the Company will not: (A) violate any provisions~~ binding agreement of the ~~Articles~~ Parent, enforceable in accordance with its terms, except as enforceability may be limited by general equitable principles, bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally and except with respect to those provisions relating to indemnities or contributions for liabilities under the Act as to which no opinion need be expressed. In rendering such opinion, such counsel may rely as to matters of ~~Incorporation or Bylaws~~ local law on opinions of local counsel, and as to matters of fact on certificates of officers of the Parent and of the Company and of governmental officials, in which case their opinion is to state that they are so doing and that the Underwriters are justified in relying on such opinions or ~~the Significant Subsidiary; (B) violate any~~ certificates and copies of ~~the provisions of,~~ said opinions or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument certificates are to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit be attached to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amendedopinion. Such counsel shall also ~~state~~ include a statement to the effect that ~~they have participated in conferences with officers~~ nothing has come to such counsel's attention that would lead such counsel to believe that either at the effective date of the Registration Statement or at the applicable Closing Date the Registration Statement or the Prospectus, or any such amendment or supplement thereto, except for the financial statements and schedules and other ~~representatives~~ financial and statistical data included therein as to which such counsel need express no opinion, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances in which they were made, not misleading. (ii) Such opinion or opinions of Wils▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇osa▇▇, ▇.C., counsel for the Underwriters dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the incorporation of the Company, ~~representatives~~ the sufficiency of ~~auditors for~~ all corporate proceedings and other legal matters relating to this Agreement, the ~~Company and representatives~~ validity of the ~~Underwriters and their counsel during which the content of~~ Common Shares, the Registration Statement and the Prospectus and other related matters ~~were discussed and reviewed~~as you may reasonably require, and ~~that, although~~ the Company and the Parent shall have furnished to such counsel ~~is not verifying, is not passing upon~~ such documents and ~~does not assume any responsibility~~ shall have exhibited to them such papers and records as they may reasonably request for the ~~accuracy~~purpose of enabling them to pass upon such matters. In connection with such opinions, ~~completeness~~ such counsel may rely on representations or ~~fairness~~ certificates of officers of the ~~statements contained~~ Company and governmental officials. (iii) A certificate of the Company executed by the Chairman of the Board or ~~incorporated by reference into~~ President and the Chief Financial Officer of the Company, dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that: (1) The representations and warranties of the Company set forth in Section 2 of this Agreement are true and correct as of the date of this Agreement and as of the First Closing Date or the Second Closing Date, as the case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied on or prior to such Closing Date; (2) The Commission has not issued any order preventing or suspending the use of the Prospectus or any Preliminary Prospectus filed as a part of the Registration Statement or any amendment thereto; no stop order suspending the ~~Prospectus, on the basis~~ effectiveness of ~~the information that was developed in the course of the performance of such services, they have no reason to believe that~~ the Registration Statement ~~including~~ has been issued; and to the best of the knowledge of the respective signers, no proceedings for that purpose have been instituted or are pending or contemplated under the Act; (3) Each of the respective signers of the certificate has carefully examined the Registration Statement and the Prospectus; in his or her opinion and to the best of his or her knowledge, the Registration Statement and the Prospectus and any ~~document incorporated by reference therein, on its effective date, contained~~ amendments or supplements thereto contain all statements required to be stated therein regarding the Company; and neither the Registration Statement nor the Prospectus nor any amendment or supplement thereto includes any untrue statement of a material fact ~~or omitted~~ or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading~~, or that~~ ; (4) Since the ~~Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue~~ initial date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under on which ~~they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in~~ the Registration ~~Statement~~Statement was filed, ~~any amendment thereto including any document incorporated by reference therein~~no agreement, written or ~~the Prospectus~~oral, transaction or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information event has ~~come to the attention of the attorneys in such firm who~~ occurred which should have been ~~involved~~ set forth in ~~the preparation or review of~~ an amendment to the Registration Statement or ~~the Prospectus that would give them actual current knowledge~~ in a supplement to or amendment of ~~the existence~~ any prospectus which has not been disclosed in such a supplement or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificateamendment; (ii5) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of Since the respective ~~signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws~~ dates as of ~~any jurisdiction; (iii) Each of the respective signatories has examined~~ which information is given in the Registration Statement and the Prospectus, and ~~any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference~~ except as disclosed in the ~~Registration Statement~~Prospectus, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that there has not been ~~so set fo~~any material adverse change or a development involving a material adverse change in the condition (financial or otherwise), (6) Since the respective dates as of which information is given

Appears in 1 contract

Sources: Underwriting Agreement (Atl Products Inc)

Conditions of the Obligations of the Underwriters. The respective obligations of the several Underwriters ~~under this Agreement~~ hereunder to purchase and pay for the Offered Shares as provided herein on the First Closing Date and, with respect to the Optional Shares, each Option Closing Date, shall be subject to the accuracy of the representations and warranties on the part of the Company ~~herein~~ and the Selling Stockholder set forth in Section 1 hereof as of the date hereof and as of the First Closing Date as though then made and, with respect to the Optional Shares, as of each Option Closing ~~Date~~Date as though then made, to the ~~accuracy of the statements of the Company's officers made pursuant to the provisions hereof, to the~~ timely performance ~~in all material respects~~ by the Company and the Selling Stockholder of ~~its~~ their respective covenants and other obligations hereunder, and to each of the following additional conditions~~, unless waived in writing by the Representatives~~: (a) ~~The Registration Statement~~ On the date hereof, the Representatives shall have ~~been declared effective by~~ received from Ernst & Young LLP, independent registered public accountants for the ~~Commission not later than 5:30 p.m.~~Company, ~~Washington, D.C. time, on~~ a letter dated the date ~~of this Agreement~~hereof addressed to the Underwriters, ~~or such later time~~ in form and ~~date as shall have been consented~~ substance satisfactory to by the Representatives, ~~which consent~~ containing statements and information of the type ordinarily included in accountant’s “comfort letters” to underwriters, delivered according to Statement of Auditing Standards No. 72 (or any successor bulletin), with respect to the audited and unaudited financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus, and each free writing prospectus, if any. (i) The Company shall ~~be deemed to~~ have ~~been given if~~ filed the Prospectus with the Commission (including the information previously omitted from the Registration Statement ~~shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives~~ pursuant to Rule ~~461~~ 430B under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act; ~~all filings required by Rules 424(b) and 430A under~~ or the ~~Act~~ Company shall have ~~been timely made; no~~ filed a post-effective amendment to the Registration Statement containing the information previously omitted from the Registration Statement pursuant to such Rule 430B, and such post-effective amendment shall have become effective. (ii) No stop order suspending the effectiveness of the Registration Statement ~~shall have been issued by the Commission~~ or any ~~state securities commission nor,~~ post-effective amendment to the ~~knowledge of the Company~~Registration Statement shall be in effect, ~~shall any~~ and no proceedings for ~~that~~ such purpose shall have been instituted or ~~threatened;~~ threatened by the Commission. (iii) If a filing has been made with FINRA, FINRA shall have raised no objection to the fairness and ~~any request~~ reasonableness of the ~~Commission or~~ underwriting terms and arrangements. (c) For the period from and after the date of this Agreement and through and including the First Closing Date and, with respect to any ~~state securities commission for inclusion of additional information~~ Optional Shares purchased after the First Closing Date, each Option Closing Date: (i) in the ~~Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction~~ judgment of the Representatives ~~acting in good faith.~~there shall not have occurred any Material Adverse Effect; and (~~b) Subsequent to the execution of this Agreement, (i~~ii) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any securities of the Company or ~~development involving~~any of its subsidiaries by any “nationally recognized statistical rating organization” as that term is used in Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act. (d) On each of the First Closing Date and each Option Closing Date, the Representatives shall have received the written opinion, negative assurance letter and tax opinion of ▇▇▇▇▇ Lovells US LLP, counsel for the Company, dated as of such date, in the forms attached hereto as Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇ and Exhibit A-3 respectively and to such further effect as the Representatives shall reasonably request. (e) On each of the First Closing Date and each Option Closing Date, the Representatives shall have received the opinion of Sidley Austin LLP, counsel for the Underwriters in connection with the offer and sale of the Offered Shares, in form and substance satisfactory to the Underwriters, dated as of such date, with executed copies for each of the other Underwriters named on the Prospectus cover page. (f) On each of the First Closing Date and each Option Closing Date, the Representatives shall have received a certificate executed on behalf of the Company and the Operating Partnership by its (or ~~which could be reasonably expected~~ its general partner’s) Chairman of the Board, President or any Executive Vice President and the Chief Financial Officer, dated as of such date, to ~~involve~~the effect set forth in Section 6(b)(ii) and further to the effect that: (i) for the period from and including the date of this Agreement through and including such date, a there has not occurred any Material Adverse Effect; (ii) the representations, ~~whether~~ warranties and covenants of the Company and the Operating Partnership set forth in Section 1(A) of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and (iii) the Company and the Operating Partnership have complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or ~~not arising~~ satisfied hereunder at or prior to such date. (g) On each of the First Closing Date and each Option Closing Date, the Representatives shall have received from ~~transactions~~ Ernst & Young LLP, independent registered public accountants for the Company, a letter dated such date, in form and substance satisfactory to the Representatives, which letter shall: (i) reaffirm the statements made in the ~~ordinary course~~ letter furnished by them pursuant to Section 6(a), except that the specified date referred to therein for the carrying out of ~~business~~procedures shall be no more than three business days prior to the First Closing Date or the applicable Option Closing Date, as the case may be; and (ii) cover certain financial information contained in the Prospectus. (h) On each of the First Closing Date and each Option Closing Date, the Representatives shall have received the opinion of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Selling Stockholder, dated as of such date, in the form attached hereto as Exhibit B and to such further effect as the Representatives shall reasonably request. (i) On each of the First Closing Date and each Option Closing Date, the Representatives shall receive a written certificate executed by the Selling Stockholder, dated as of such date, to the effect that: (i) the representations, warranties and covenants of the Selling Stockholder set forth in Section 1(B) of this Agreement are true and correct with the same force and effect as though expressly made by the Selling Stockholder on and as of such date; and (ii) the Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date. (j) On or prior to the date hereof, the Company shall ~~not~~ have furnished to the Representatives an agreement in the form of Exhibit C hereto from each of the persons listed on Exhibit D hereto, and each such agreement shall be in full force and effect on each of the First Closing Date and each Option Closing Date. (k) In the event that a Rule 462(b) Registration Statement is filed in connection with the offering contemplated by this Agreement, such Rule 462(b) Registration Statement shall have been filed with the Commission on the date of this Agreement and shall have become effective automatically upon such filing. (l) On or before each of the First Closing Date and each Option Closing Date, the Representatives and counsel for the Underwriters shall have received such information, documents and opinions as they may reasonably request for the purposes of enabling them to pass upon the issuance and sale of the Offered Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained; and all proceedings taken by the Company and the Selling Stockholder in connection with the issuance and sale of the Offered Shares as contemplated herein and in connection with the other transactions contemplated by this Agreement shall be satisfactory in form and substance to the Representatives and counsel for the Underwriters. (i) None of the Operating Partnership, the Company or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Time of Sale Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor ~~dispute, strike, fire, flood, windstorm, accident~~ dispute or ~~other calamity (whether or not insured) or from any~~ court or governmental action, order or ~~decree having~~ decree, otherwise than as set forth or contemplated in the Time of Sale Prospectus, and (ii) since the respective dates as of which information is given in the Time of Sale Prospectus there shall not have been any change in the capital stock of the Company or OP Units of the Operating Partnership or long-term debt of the Operating Partnership, the Company or any of their respective subsidiaries or any change, or any development involving a ~~Material Adverse Effect~~prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Operating Partnership, the Company or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Time of Sale Prospectus, the effect of ~~which on the Company~~which, in any such case described in clause (i) or (ii~~) above~~), is in ~~the reasonable and good faith opinion of the Representatives~~ your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the ~~public~~ offering or the delivery of the Offered Shares being delivered at the First Closing Date or any Option Closing Date on the terms and in the manner contemplated in the ~~Registration Statement~~ Time of Sale Prospectus. If any condition specified in this Section 6 is not satisfied when and the Prospectus. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is as required to be ~~stated therein or necessary~~ satisfied, this Agreement may be terminated by the Representatives by notice from the Representatives to ~~make the statements therein not misleading. (d) The Representatives shall have received opinions of Foley & Lardner, special couns▇▇ ▇▇r~~ the Company ~~(as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)),~~ and the ~~Vice President, General Counsel and Secretary of the Company (as~~ Selling Stockholder at any time on or prior to ~~the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated~~ the First Closing Date or the Second Closing Date, as the case may be, to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the ~~sale of the Shares hereunder~~Optional Shares, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received at any time on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the ~~date of such certificate; (ii) The Commission has not issued an order preventing or suspending~~ applicable Option Closing Date, which termination shall be without liability on the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws part of any ~~jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement~~ party to any other party, except that Section 4, Section 7, Section 9 and ~~the Prospectus,~~ Section 10 shall at all times be effective and ~~any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and~~ shall survive such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set fotermination.

Appears in 1 contract

Sources: Underwriting Agreement (QTS Realty Trust, Inc.)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement~~ to purchase and pay for the Firm Common Shares on the First Closing Date and the Optional Common Shares on the Second Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Shareholders herein set forth as of the date hereof and as of ~~each~~ the First Closing Date or the Second Closing Date, as the case may be, to the accuracy of the statements of Company officers and the ~~Company's officers~~ Selling Shareholders made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company and the Selling Shareholders of ~~its~~ their respective obligations hereunder, and to the following additional conditions~~, unless waived in writing by the Representatives~~: (a) The Registration Statement shall have ~~been declared~~ become effective ~~by the Commission~~ not later than ~~5:30~~ 5:00 p.m.(or, in the case of a registration statement filed pursuant to Rule 462(b) of the Rules and Regulations relating to the Common Shares, not later than 10:00 p.m.), Washington, D.C. time, on the date of this Agreement, or at such later time ~~and date~~ as shall have been consented to by ~~the Representatives, which consent shall be deemed to have been given~~ you; if the ~~Registration Statement~~ filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b) of the Rules and Regulations, the Prospectus shall have been ~~declared effective on or before the date and time requested~~ filed in the ~~acceleration request submitted on behalf~~ manner and within the time period required by Rule 424(b) of the ~~Representatives pursuant~~ Rules and Regulations; and prior to ~~Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made;~~ such Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission~~ and no proceedings for that purpose shall have been instituted or ~~any state securities commission nor~~shall be pending or, to the knowledge of the Company, the Selling Shareholders or you, shall ~~any proceedings for that purpose have been instituted or threatened~~be contemplated by the Commission; and any request of the Commission ~~or any state securities commission~~ for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to ~~the reasonable satisfaction of the Representatives acting in good faith~~your satisfaction. (b) ~~Subsequent to~~ You shall be satisfied that since the ~~execution~~ respective dates as of ~~this Agreement,~~ which information is given in the Registration Statement and Prospectus, (i) there shall not have ~~occurred~~ been any change in the capital stock other than pursuant to the exercise of outstanding options and warrants disclosed in the Prospectus of the Company or ~~development involving~~any material change in the indebtedness of the Company, (ii) except as set forth or contemplated by the Registration Statement or the Prospectus, no material verbal or written agreement or other transaction shall have been entered into by the Company, which ~~could be reasonably expected to involve, a Material Adverse Effect, whether or~~ is not ~~arising from transactions~~ in the ordinary course of business, ~~and~~ (iiiii) ~~the Company shall not have sustained any~~ no loss or ~~interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity~~ damage (whether or not insured) to the property of the Company shall have been sustained which materially and adversely affects the condition (financial or ~~from any court~~ otherwise), business, results of operations or prospects of the Company, (iv) no legal or governmental action, ~~order~~ suit or ~~decree having a Material Adverse Effect,~~ proceeding affecting the ~~effect of~~ Company which on is material to the ~~Company, in~~ Company or which affects or may affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any ~~such case described in clause (i) or (ii) above, is~~ material change in the ~~reasonable and good faith opinion~~ condition (financial or otherwise), business, management, results of operations or prospects of the Company which makes it impractical or inadvisable in the judgment of the Representatives ~~so material and adverse as to make it impracticable or inadvisable~~ to proceed with the public offering or purchase the ~~delivery of the~~ Common Shares ~~on the terms and in the manner~~ as contemplated ~~in the Registration Statement and the Prospectus~~hereby. (c) ~~The Representatives~~ There shall ~~not~~ have ~~advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that~~been furnished to you on each Closing Date, in ~~the reasonable~~ form and ~~good faith~~ substance satisfactory to you, except as otherwise expressly provided below: (i) An opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives shall have received opinions of Foley & Lardner, special couns▇▇▇▇▇ ▇▇r ▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, counsel for the ~~Company (as to the matters set forth below in subsections (i)~~Company, (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the ~~Representatives, as the representatives of the Underwriters,~~ Underwriters and dated the First Closing ~~Date~~ Date, or the Second Closing Date, as the case may be, to the effect that: (i1) The Company has been duly incorporated and is validly existing as a corporation ~~in good standing~~ under the laws of ~~Delaware~~the State of Washington to such counsel's knowledge, ~~with~~ is duly qualified to do business as a foreign corporation and is in good standing in all other jurisdictions where the ownership or leasing of properties or the conduct of its business requires such qualification, except for jurisdictions in which the failure to so qualify would not have a material adverse effect on the Company, has full corporate power and authority to ~~own, lease and operate~~ own its properties and conduct its business as ~~presently conducted and as~~ described in the ~~Prospectus~~ Registration Statement and to such counsel's knowledge has no subsidiaries other than as listed in Exhibit 21 to the Registration Statement; (ii2) The ~~authorized~~ authorized, issued and outstanding capital stock of the Company ~~consists of 60,000,000~~ is as set forth under the caption "Capitalization" in the Prospectus; all necessary and proper corporate proceedings have been taken in order to validly authorize the authorized Common Stock; all outstanding shares of Common ~~Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share;~~ Stock (~~iii~~including the Optional Common Shares) ~~The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder~~ have been duly ~~authorized~~ and validly issued, are fully paid and ~~nonassessable (except~~nonassessable, to have been issued in compliance with the ~~extent applicable, as otherwise provided in Section 180.0622(2)(b)~~ registration and qualification provisions of ~~the Wisconsin Business Corporation Law, as judicially interpreted), and~~federal and state securities laws, to such counsel's ~~knowledge, there are no preemptive, preferential or, except as described~~ knowledge were not issued in ~~the Prospectus,~~ violation of or subject to any preemptive rights or other rights to subscribe for or purchase any ~~shares of capital stock of~~ securities and conform to the ~~Company and~~description thereof in the Prospectus; without limiting the foregoing, to such counsel's ~~knowledge,~~ knowledge there are no ~~shares of capital stock~~ preemptive or other rights to subscribe for or purchase any of the Common Shares to be sold by the Company ~~have been issued in violation of such rights~~or the Selling Shareholders hereunder; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v3) The certificates ~~for~~ evidencing the Common Shares to be delivered hereunder ~~conform~~ are in ~~all material respects to the requirements of the Delaware General Corporation Law~~ due and ~~the rules and regulations of the New York Stock Exchange;~~ proper form under Washington law, and when duly countersigned by the Company's transfer ~~agent~~agent and registrar, and delivered to ~~the Representatives~~ you or upon ~~the~~ your order ~~of the Representatives~~ against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Firm Common Shares represented thereby will be duly authorized and validly issued, fully paid and ~~nonassessable~~ nonassessable, will not have been issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities and will conform in all respects to the description thereof contained in the Prospectus; (~~except~~4) Except as disclosed in or specifically contemplated by the Prospectus, to the ~~extent applicable~~best of such counsel's knowledge, ~~as otherwise provided in Section 180.0622(2)(b)~~ there are no outstanding options, warrants or other rights calling for the issuance of, and no commitments, plans or arrangements to issue, any shares of capital stock of the ~~Wisconsin Business Corporation Law, as judicially interpreted)~~Company or any security convertible into or exchangeable for capital stock of the Company; (via) The Registration Statement has become effective under the ~~Act~~ Act, and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement or preventing the use of the Prospectus has been issued ~~and~~ and, to such counsel's knowledge, no proceedings for that purpose have been instituted or are ~~threatened~~ pending or contemplated by the Commission; ~~the Registration Statement and~~ any required filing of the Prospectus and any supplement thereto pursuant to Rule 424(b) of the Rules and Regulations has been made in the manner and within the time period required by such Rule 424(b); (b) The Registration Statement, the Prospectus and each amendment or supplement ~~thereto, including any document incorporated by reference into the Registration Statement~~ thereto (except for the financial statements and schedules ~~and other statistical or financial data~~ included ~~therein,~~ therein as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the ~~Act;~~ Act and the ~~conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied;~~Rules and Regulations. (~~vii~~c) To such counsel's knowledge, there are no franchises, leases, contracts, agreements or documents of a character required to be disclosed in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not disclosed or filed, as required; and (d) To such counsel's knowledge, there are no legal or governmental actions, suits or proceedings pending or threatened ~~legal or governmental proceedings that~~ against the Company which are required to be described in the ~~Registration Statement or the~~ Prospectus ~~that~~ which are not ~~so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be~~ described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as ~~an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference~~ required;. (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix6) The Company has ~~full~~ the corporate power and authority to enter into this Agreement and ~~perform~~ to sell and deliver the Common Shares to be sold by it to the several Underwriters; this ~~Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have~~ Agreement has been duly and validly authorized ~~by the Company~~ by all necessary corporate action ~~and this Agreement~~ by the Company, has been duly and validly executed and delivered by and on behalf of the Company, and is a ~~legal,~~ valid and binding agreement of ~~the Company enforceable against~~ the Company in accordance with its terms, except ~~that rights to indemnity or contribution hereunder~~ as enforceability may be limited by ~~applicable law and except as to enforceability of this Agreement may be limited by~~ general equitable principles, bankruptcy, insolvency, reorganization, moratorium or other ~~similar~~ laws affecting creditors' rights ~~generally~~generally and except as to those provisions relating to indemnity or contribution for liabilities arising under the Act as to which no opinion need be expressed; and no approval, ~~and by equitable principles limiting the right to specific performance or other equitable relief; and~~authorization, ~~to such counsel's knowledge~~order, no consent, ~~approval~~registration, ~~authorization~~ filing, qualification, license or ~~other order~~ permit of or ~~decree of~~ with any court, ~~regulatory or governmental body, arbitrator~~regulatory, administrative ~~agency~~ or other ~~instrumentality of the United States having jurisdiction over the Company,~~ governmental body is required for the execution and delivery of this Agreement by the Company or the consummation by the Company of the transactions contemplated by this ~~Agreement (~~Agreement, except ~~for compliance with~~ such as have been obtained and are in full force and effect under the ~~Act, the Exchange Act,~~ Act and such as may be required under applicable Blue Sky ~~Laws~~ laws in connection with the purchase and distribution of the Common Shares by the Underwriters and the clearance of ~~the underwriting arrangements~~ such offering with the NASD); (x7) The ~~execution,~~ execution and delivery ~~and performance~~ of this Agreement by the Company ~~will not: (A) violate any provisions of~~ and the ~~Articles of Incorporation or Bylaws of~~ performance by the Company or of its obligations set forth herein will not conflict with, result in the ~~Significant Subsidiary; (B) violate any of the provisions~~ breach of, or ~~result in~~ constitute, either by itself or upon notice or the ~~breach~~passage of time or both, ~~modification or termination of, or constitute~~ a default under, any agreement, mortgage, deed of trust, lease, franchise, license, indenture, ~~permit, mortgage, deed of trust, other evidence of indebtedness~~ permit or other instrument known to such counsel to which the Company ~~or the Significant Subsidiary~~ is a party or by which the Company or any of its property or assets may be bound or affected which is material to the ~~Significant Subsidiary~~Company or its property or assets (each, a "Material Contract"), or violate any of ~~their respective owned~~ the provisions of the articles of incorporation or ~~leased property is bound~~bylaws, ~~and which is filed~~ or ~~incorporated by reference as an exhibit~~ other organizational documents, of the Company or, to ~~the Registration Statement; or (C)~~ such counsel's knowledge, violate any statute, ~~ordinance~~judgment, decree, order, ~~rule, decree~~ rule or regulation of any ~~court, regulatory~~ court or governmental ~~body, arbitrator, administrative agency or other instrumentality of the United States~~ body having jurisdiction over the Company or ~~the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws)~~any of its property; (xi8) The Company is not in violation of its articles of incorporation or bylaws, or other organizational documents, or to such counsel's knowledge, in breach of or default with respect to any provision of any Material Contract, except where such default would not materially adversely affect the Company; (9) To such counsel's knowledge, ~~there are~~ no holders of securities of the Company have rights which have not been waived to the registration of shares of Common Stock or other ~~securities~~ securities, because of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content filing of the Registration Statement ~~and~~ by the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement Company or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date.offering contemplated hereby; (e10) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, statements in the Registration Statement and Prospectus under the headings "Management," "Certain Transactions," "Description of Capital Stock" and "Shares Eligible for Future Sale" and in the Registration Statement in Items 24 and 26, insofar as they are descriptions of contracts, agreements or other ~~related matters as the Representatives may reasonably require~~legal documents or refer to statements of law or legal conclusions, are accurate and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied complete in all material respects ~~with all~~ and fairly present the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated information contained therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set fo.

Appears in 1 contract

Sources: Underwriting Agreement (Apex Pc Solutions Inc)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of the ~~Company~~ Seller and the Servicer herein ~~set forth as of~~ on the date hereof and ~~as of each~~ at the Closing Date, to the accuracy of the statements of officers of the ~~Company's officers~~ Seller and the Servicer made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Seller and the Servicer of ~~its~~ their respective obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) ~~The~~ At the time this Agreement is executed and delivered by the Seller and at the Closing Date, a nationally recognized accounting firm who are independent public accountants shall have furnished to the Representative letters dated respectively as of the date of this Agreement and as of the Closing Date substantially in the forms of the drafts to which the Representative previously agreed. (b) If the time of effectiveness of the Initial Registration Statement is not prior to the execution and delivery of this Agreement, such time of effectiveness shall have ~~been declared effective by the Commission~~ occurred not later than ~~5:30~~ 10:00 p.m., ~~Washington, D.C.~~ New York time, on the date of this ~~Agreement,~~ Agreement or such later ~~time and~~ date as shall have been consented to by the ~~Representatives, which consent shall be deemed to have been given if~~ Representative. If the time of effectiveness of the Initial Registration Statement is prior to the execution and delivery of this Agreement, the Preliminary Prospectus, the Ratings Free Writing Prospectus and the Final Prospectus and all amendments and supplements thereto shall have been ~~declared effective~~ filed with the Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement. If the time of effectiveness of the Additional Registration Statement (if any) is not prior to the execution and delivery of this Agreement, such time of effectiveness shall have occurred not later than 10:00 p.m., New York time, on ~~or before~~ the date of this Agreement or, if earlier, the time the Final Prospectus is printed and ~~time requested in the acceleration request submitted on behalf of the Representatives pursuant~~ distributed to ~~Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act~~ any Underwriter, or shall have occurred at such later date as shall have been ~~timely made;~~ consented to by the Representative. Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Seller, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faith. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the ProspectusCommission. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives Underwriters shall have received ~~opinions of Foley & Lardner~~an officers’ certificate, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the ~~First Closing Date or the Second~~ Closing Date, as signed by the ~~case may be~~Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of the Seller representing and warranting that, to the ~~effect that~~best of such officers’ knowledge after reasonable investigation, as of the Closing Date: (i) The ~~Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power~~ representations and ~~authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock~~ warranties of the ~~Company consists of 60,000,000 shares of Common Stock~~Seller in this Agreement are true and correct in all material respects, ~~par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share,~~ that the Seller has complied with all agreements and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform satisfied in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the ~~requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent~~Closing Date, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, that no stop order suspending the effectiveness of ~~the~~ any Registration Statement has been issued and no proceedings for that purpose have been instituted or or, to the best of their knowledge, are ~~threatened~~ contemplated by the Commission~~; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement~~ . 12 (~~except for the financial statements and schedules and other statistical or financial data included~~ Nissan 2014-B Underwriting Agreement) (ii) Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended and supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of the Seller or any of its affiliates (as such term is defined in Rule 501(b) under the Act) (each, an “Affiliate”), or in the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the term “material” in this Agreement that refer to the Seller or its Affiliates, or any of them, shall be interpreted in proportion to the business of the Servicer and its consolidated subsidiaries, as a whole, and not in proportion to the business of the Seller or its Affiliate(s) individually. (d) The Underwriters shall have received an officers’ certificate, dated the Closing Date, signed by the Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of the Servicer representing and warranting that, to the best of such ~~counsel need express no opinion~~officers’ knowledge after reasonable investigation, as of the Closing Date: (i) ~~comply as to form~~ The representations and warranties of the Servicer in this Agreement are true and correct in all material ~~respects~~ respects, that the Servicer has complied with all agreements and satisfied, in all material respects, all conditions on its part to be performed or satisfied hereunder at or prior to the ~~requirements~~ Closing Date, that no stop order suspending the effectiveness of any Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the best of their knowledge, are contemplated by the Commission. (ii) Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended and supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ~~Act;~~ ordinary course of business, of the ~~conditions for use~~ Servicer or any of ~~Form S-3~~its Affiliates, ~~set forth~~ or the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the term “material” in this Agreement that refer to the ~~General Instructions thereto~~Servicer or its Affiliates, ~~have been satisfied;~~or any of them, shall be interpreted in proportion to the business of the Servicer and its consolidated subsidiaries, as a whole, and not in proportion to the business of the Servicer or its Affiliate(s) individually. (~~vii~~e) ~~To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required~~ Subsequent to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this ~~Agreement or the consummation of the transactions contemplated by this Agreement~~ Agreement, there shall not have occurred (~~except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x~~i) ~~The execution, delivery and performance of this Agreement by the Company will not: (A) violate~~ any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiarychange, or any development involving a prospective change, in or affecting particularly the business or properties of ~~their respective owned~~ the Seller, Nissan North America, Inc. (“NNA”) or ~~leased property is bound~~the Servicer which, in the judgment of the Representative, materially impairs the investment quality of the Notes or makes it impractical or inadvisable to proceed with completion of the sale of and ~~which is filed or incorporated by reference as an exhibit to~~ payment for the ~~Registration Statement~~Notes; or (Cii) ~~violate~~ any ~~statute, ordinance, order, rule, decree or regulation~~ suspension of trading of any ~~court, regulatory~~ securities of NNA on any exchange or ~~governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction~~ in any over the ~~Company~~ counter market; (iii) any suspension or ~~the Significant Subsidiary (assuming compliance with all applicable federal and state~~ limitation of trading in securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading generally on the New York Stock ~~Exchange;~~Exchange or any setting of minimum prices for trading on such exchange; (iv) any material disruption in commercial banking, securities entitlement or clearance 13 (Nissan 2014-B Underwriting Agreement) services in the United States; (v) any banking moratorium declared by federal or New York authorities; or (vi) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes. (~~xiii~~f) To At the Closing Date, ▇▇▇▇ ▇▇▇▇, Esq., General Counsel of the Seller and the Servicer, or other counsel satisfactory to the Representative in its reasonable judgment, shall have furnished to the Representative such counsel~~'s knowledge~~’s written opinion, ~~neither~~ dated the ~~Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be~~Closing Date, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers form and ~~other representatives of the Company, representatives of auditors for the Company and representatives of~~ substance reasonably satisfactory to the Underwriters and ~~their~~ counsel ~~during which~~ to the ~~content of~~ Underwriters. (g) At the ~~Registration Statement~~ Closing Date, ▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel to the Seller and the ~~Prospectus and related matters were discussed and reviewed~~Servicer, ~~and that~~shall have furnished to the Representative their written opinion, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and dated as of the Closing Date, ~~contained or contains any untrue statement of a material fact or omitted or omits~~ with respect to ~~state a material fact necessary in order to make~~ general corporate matters, the ~~statements therein, in light~~ validity of the ~~circumstances under which they were made~~Notes, ~~not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in~~ the Registration Statement, ~~any amendment thereto including any document incorporated by reference therein, or~~ the Prospectus Supplement and the Base Prospectus, ~~or any amendment or supplement thereto including any document incorporated by reference therein). To~~ the ~~extent that any~~ effectiveness of such ~~opinions are stated to be based upon such counsel's knowledge or to be given "to~~ Registration Statement and the ~~knowledge of such counsel," such qualification shall signify that no~~ information ~~has come to the attention of the attorneys~~ contained in ~~such firm who have been involved in the preparation or review~~ each of the Registration ~~Statement or~~ Statement, the Prospectus ~~that would give them actual current knowledge of~~ Supplement and the ~~existence or absence of such matter~~ Base Prospectus, in ~~question. In rendering such opinion, counsel for the Company may rely,~~ form and substance reasonably satisfactory to the ~~extent~~ Underwriters and counsel ~~deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished~~ to the ~~Representatives and for the Underwriters on or before each Closing Date~~Underwriters. (eh) ~~The Representatives~~ At the Closing Date, ▇▇▇▇▇ ▇▇▇▇▇ LLP, or such counsel as may be reasonably acceptable to the Underwriters, shall have ~~received an opinion~~ furnished their written opinion, dated the Closing Date, with respect to the characterization of ~~Michael Best & Friedrich LLP~~the transfer of the Receivables by the Servicer to the Seller and with respect to other bankruptcy and perfection of security interest matters, in form and in substance reasonably satisfactory to the Underwriters and counsel to the Underwriters. (i) At the Closing Date, ▇▇▇▇▇▇~~▇ ▇▇▇ the~~ , ▇▇▇▇▇▇▇▇~~ters~~▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, shall have furnished their written opinion dated the ~~First Closing Date or the Second~~ Closing Date~~, as the case may be~~, with respect to the ~~sale~~ validity of the ~~Shares hereunder, the Registration Statement~~ Notes and such other related matters as the ~~Representatives may~~ Representative shall require, in form and substance reasonably ~~require~~satisfactory to the Underwriters, and the ~~Company~~ Seller shall have furnished or caused to be furnished to such counsel such documents ~~and shall have exhibited to them such papers and records~~ as ~~such counsel~~ they may reasonably request for the purpose of enabling them to pass upon such matters. (fj) ~~The Representatives shall have received on each~~ At the Closing Date, ~~a certificate of Kenneth W. Krueger, Senior Vic▇~~ ▇▇▇▇▇▇▇▇▇ , ▇▇▇▇▇▇ & ▇▇~~ief Financial Officer~~▇▇▇▇, P.A., counsel to the Trust and the Owner Trustee, shall have furnished their written opinion addressed to you, the Seller and the Servicer, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters. (k) At the Closing Date, each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to ▇▇▇▇▇ Fargo Bank, National Association, as Indenture Trustee, and ~~W. David Romoser~~in-house counsel to ▇▇▇▇▇ Fargo & Company, the parent corporation of ▇▇▇▇▇ Fargo Bank, National Association shall have furnished their written opinions, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters. (l) The Representative shall have received an officer’s certificate dated the Closing Date of the Chairman of the Board, the President or any Vice ~~President~~President and by a principal financial or accounting officer of each of the Seller and the Servicer in which each such officer shall state that, to the best of such officer’s knowledge after reasonable investigation, the representations and warranties of the Seller or the Servicer, as applicable, contained in the Sale and Servicing Agreement and the representations and warranties of the Servicer or the Seller, as applicable, contained in the Purchase Agreement are true and correct in all material respects and that the Seller or the Servicer, as applicable, has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Closing Date in all material respects. (m) The Representative shall have received evidence of ratings letters that assign the ratings to the Notes as specified in the Ratings Free Writing Prospectus. (n) On or prior to the Closing Date, the Seller shall have furnished to the Representative such further certificates and documents as the Representative shall reasonably have required. (o) At the Closing Date, the Representative shall have received an opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇~~sel~~ ▇▇ & ▇▇▇▇▇, LLP, special Tennessee counsel to the Seller and ~~Secretary~~the Servicer, of dated the ~~Company~~Closing Date, in ~~their respective capacities as such,~~ form and substance reasonably satisfactory to the ~~effect that: (i) The representations~~ Underwriters and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior counsel to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set foUnderwriters.

Appears in 1 contract

Sources: Underwriting Agreement (Nissan Auto Receivables 2014-B Owner Trust)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall be~~ to purchase and pay for the Firm Shares on the Closing Date and the Additional Shares on any Option Closing Date are subject to the ~~accuracy~~ fulfillment of each of the ~~representations~~ following conditions on or prior to the Closing Date and ~~warranties on the part of the Company herein set forth as of the date hereof and as of~~ each Option Closing Date, to the accuracy of the statements of the Company's officers made pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder, and to the following additional conditions, unless waived in writing by the Representatives: (a) All the representations and warranties of the Company contained in this Agreement and in any certificate delivered hereunder shall be true and correct on the Closing Date and each Option Closing Date with the same force and effect as if made on and as of the Closing Date or Option Closing Date, as applicable, except to the extent such representations and warranties are stated to be made as of a specific date, in which case, such representations and warranties shall be true and correct as of such date. The Company shall not have failed at or prior to the Closing Date or Option Closing Date, as applicable, to perform or comply in all respects with any of the agreements herein contained and required to be performed or complied with by the Company at or prior to the Closing Date. (b) If the Registration Statement is not effective at the time of the execution and delivery of this Agreement, the Registration Statement shall have ~~been declared~~ become effective by (or, if a post-effective amendment is required to be filed pursuant to Rule 430A under the ~~Commission~~ Act, such post-effective amendment shall have become effective) not later than ~~5:30 p.m.~~9:30 A.M., ~~Washington, D.C.~~ New York City time, on the date immediately following the date of this ~~Agreement,~~ Agreement or such later time ~~and date~~ as ~~shall have been consented to by the Representatives~~you may approve in writing or, ~~which consent shall be deemed to have been given~~ if the Registration Statement has been declared effective prior to the execution and delivery hereof in reliance on Rule 430A, the Prospectus shall have been ~~declared effective on or before~~ filed as required hereby, if necessary; and at the ~~date~~ Closing Date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; each applicable Option Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor, to the knowledge of the Company, shall any~~ and no proceedings for that purpose shall have been ~~instituted~~ commenced or ~~threatened~~shall be pending before or, to the best knowledge of the Underwriters or the Company, threatened by the Commission; ~~and any~~ every request for additional information on the part of the Commission ~~or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise,~~ shall have been complied with to the ~~reasonable satisfaction of~~ Underwriters' satisfaction; no stop order suspending the Representatives acting in good faith. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery sale of the Shares ~~on the terms~~ in any jurisdiction referred to in Section 5(g) shall have been issued and ~~in the manner contemplated in the Registration Statement and the Prospectus~~no proceeding for that purpose shall have been commenced or shall be pending or threatened. (c) The ~~Representatives~~ Shares shall ~~not~~ have ~~advised~~ been qualified for sale, if applicable, under the ~~Company that~~ Blue Sky laws of such states as shall have been specified by the Representatives. (d) The legality and sufficiency of the authorization, issuance and sale or transfer and sale of the Shares hereunder, the validity and form of the certificates representing the Shares, the execution and delivery of this Agreement and all corporate proceedings and other legal matters incident thereto, and the form of the Registration Statement and the Prospectus (except financial statements) shall have been approved by counsel for the Underwriters exercising reasonable judgment, and neither the Registration Statement nor the Prospectus, nor any amendment or ~~Prospectus contains~~ supplement thereto, shall contain an untrue statement of ~~fact that~~material fact, ~~in the reasonable and good faith opinion of the Representatives~~ or ~~counsel for the Underwriters, is material or omits~~ omit to state a fact ~~that, in the reasonable and good faith opinion of the Representatives or such counsel,~~ that is material and is required to be stated therein or is necessary to make the statements therein not misleading. (de) ~~The Representatives~~ Subsequent to the execution and delivery of this Agreement, there shall not have occurred any material change, or any material development involving a prospective change, in or affecting particularly the business or properties of the Company or the Bank whether or not arising in the ordinary course of business, that, in the judgment of the Representatives, makes it impractical or inadvisable to proceed with the public offering or purchase of the Shares as contemplated hereby. (f) You shall have received ~~opinions~~ an agreement from each of ~~Foley & Lardner, special couns▇▇ ▇▇r~~ the ~~Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix)~~ officers and ~~(xiv)), and the Vice President, General Counsel and Secretary~~ directors of the Company and from ______________ (as collectively, the "Additional Stockholders"), whereby each such Additional Stockholder agrees to be bound by an agreement to the ~~matters~~ same effect as the covenants set forth in ~~subsections~~ the third paragraph of Section 3 of this Agreement (~~iii~~the "Lock-Up Agreements"), . (~~iv),~~ g) You shall have received an opinion (~~v), (vii), (x), (xi), (xii~~satisfactory to you and your counsel) ~~and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and~~ dated the ~~First~~ Closing Date or the ~~Second~~ Option Closing Date, as the case may be, of Vedder, Price, ▇▇▇▇▇▇▇ & Kammholz, counsel for the Company, to the effect that: (i) The Company has been duly incorporated and is a validly existing ~~as a~~ corporation in good standing under the laws of Delaware~~, with full corporate~~ . The Bank has been duly organized and is validly existing as a an Illinois banking corporation in good standing under the laws of Illinois. Each of the Company and the Bank has all necessary power and ~~authority~~ authority, corporate or otherwise, to own, lease and operate ~~its~~ their respective properties and assets and to conduct ~~its business as presently conducted and~~ their respective businesses as described in the ~~Prospectus~~ Registration Statement and the ~~Registration Statement;~~Prospectus, and each is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction in which its ownership or lease of real property or the conduct of its business makes such qualification necessary and in which the failure to so qualify could have a Material Adverse Effect. (ii) The Company has all necessary corporate power and authority to enter into and perform this Agreement, and the performance of the Company's obligations hereunder has been duly authorized by all necessary corporate action; this Agreement has been duly executed and delivered by and on behalf of the Company, and, assuming due authorization, execution and delivery of this Agreement by the Underwriters, constitutes a legal, valid and binding agreement of the Company enforceable in accordance with its terms, except as enforceability of the same may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and by general equity principles; no approval, consent, order, authorization, designation, declaration or filing by or with any regulatory, administrative or other governmental body or, to the best of such counsel's knowledge, after due inquiry, third party, is necessary in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated herein (other than as may be required by the NASD or as required by state securities or Blue Sky laws, as to which such counsel need express no opinion) except such as have been obtained or made, with counsel specifying the same. (iii) The authorized, issued and outstanding capital stock of the Company ~~consists~~ is as set forth in the Prospectus under "Capitalization;" and all of ~~60,000,000~~ the shares of ~~Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and~~ outstanding ~~shares of~~ capital stock of the Company ~~immediately prior to the sale of the Shares hereunder~~ have been duly authorized and validly issued, are fully paid and ~~nonassessable (except~~non- assessable and were not issued in violation of any preemptive rights or, to the ~~extent applicable, as otherwise provided in Section 180.0622(2)(b)~~ best of ~~the Wisconsin Business Corporation Law, as judicially interpreted), and, to~~ such counsel's knowledge~~, there are no preemptive, preferential or, except as described in the Prospectus~~, other rights to subscribe for or purchase ~~any shares of capital stock of~~ securities. Except as set forth in the ~~Company and~~Registration Statement and the Prospectus, to the best of such counsel's knowledge, no options, warrants or other rights to convert any obligation into, or exchange any securities for, shares of capital stock of or ownership interests in the Company ~~have been issued in violation of such rights;~~are outstanding. (iv) ~~The Significant Subsidiary is validly existing as a corporation in good standing or active status under~~ To the ~~laws~~ best of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, after due inquiry, neither the filing of the Registration Statement or any amendment thereto nor the offer and sale of the Shares as contemplated by this Agreement gives rise to any rights, nor do any rights exist, for or relating to the registration under the Act of any securities of the Company ~~owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary;~~that have not been waived. (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the ~~Act and~~Act, the Prospectus has been filed as required by this Agreement, if necessary, and to the best of such counsel's knowledge, after telephonic inquiry of the Commission, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose are pending or have been ~~instituted~~ initiated or ~~are~~ threatened by the Commission; . The Registration Statement (including the information deemed to be part of the Registration Statement ~~and~~ at the time of effectiveness pursuant to Rule 430A, if applicable), the Prospectus and ~~any~~ each amendment or supplement ~~thereto, including any document incorporated by reference into the Registration Statement~~ thereto (except for the financial statements ~~and schedules~~ and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; . (vi) Neither the ~~conditions for use~~ Company nor the Bank is an "investment company" or a company controlled by an "investment company" within the meaning of ~~Form S-3, set forth in~~ the ~~General Instructions thereto, have been satisfied;~~Investment Company Act. (vii) To the best of such counsel's knowledge, ~~there are no pending~~ all of the issued and outstanding capital stock of the Bank is owned by the Company, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or ~~threatened legal or governmental proceedings that are required to be described~~ equitable right. (viii) The statements made in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the ~~Exchange Act if upon such filing they would be incorporated~~captions, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Capitalization," "Description of Capital Stock," ~~in the description of the Common~~ "Management-Stock ~~contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994,~~ Incentive Plan" and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "~~investment company~~Legal Matters," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that ~~any~~ they constitute summaries of ~~such opinions are stated~~ documents referred to ~~be based upon such counsel's knowledge~~ therein or ~~to be given "to the knowledge~~ matters of ~~such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who~~ law or legal conclusions, have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to reviewed by such counsel ~~such documents~~ and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are ~~true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied~~ accurate in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set forespects.

Appears in 1 contract

Sources: Underwriting Agreement (Privatebancorp Inc)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Notes on the Closing Date will be subject to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of~~ ▇▇.▇▇▇▇▇▇ Parties and the ~~date hereof and as of each Closing Date~~Issuer Trustee herein, to the accuracy of the statements of officers of the ~~Company's officers~~ ▇▇.▇▇▇▇▇▇ Parties and the Issuer Trustee made pursuant to the provisions hereof, to the performance ~~in all material respects by~~ of the ~~Company~~ ▇▇.▇▇▇▇▇▇ Parties and the Issuer Trustee of ~~its~~ their obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The Registration Statement shall have ~~been declared~~ become effective, or if a post-effective by amendment is required to be filed under the ~~Commission~~ Securities Act, such post-effective amendment shall have become effective, not later than ~~5:30 p.m.~~5:00 P.M., ~~Washington, D.C.~~ New York City time, on the date ~~of this Agreement,~~ hereof or on such later ~~time~~ date to which you have consented; and date as shall have been consented to by the Representatives, which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission. The Prospectus, including all price-related information previously omitted from the prospectus which formed a part of the Registration Statement at the time it became effective, in accordance with Rule 430A, shall have been ~~issued~~ transmitted to the Commission for filing pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the ~~Commission or any state securities commission nor,~~ rules and regulations under the Securities Act and in accordance with Section 5.1.(a) hereof; and prior to the ~~knowledge~~ Closing Date the Trust Manager shall have provided evidence satisfactory to the Representative of ~~the Company~~such timely filing, ~~shall any proceedings~~ and all requests for ~~that purpose have been instituted or threatened; and any request of the Commission or any state securities commission for inclusion of~~ additional information ~~in the Registration Statement, or otherwise,~~ shall have been complied with to the ~~reasonable~~ satisfaction of the ~~Representatives acting in good faith~~Representative. (b) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) any change, or any development or event involving a prospective change, in the condition (~~ii) above~~financial or other), business, properties or results of operations of any of the ▇▇.▇▇▇▇▇▇ Parties, the Issuer Trustee or any Swap Party and their respective subsidiaries, in each case, taken as one enterprise, which, in the judgment of a majority in interest of the Underwriters including the Representative, is ~~in the reasonable and good faith opinion of the Representatives so~~ material and adverse ~~as to make~~ and makes it ~~impracticable~~ impractical or inadvisable to proceed with completion of the public offering or the ~~delivery~~ sale of ~~the Shares on the terms~~ and in the manner contemplated in the Registration Statement and the Prospectus. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel payment for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives shall have received opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; Notes; (ii) ~~The authorized capital stock~~ any downgrading in the rating of any debt securities of any of the ~~Company consists~~ Trust Manager, ▇▇.▇▇▇▇▇▇, the Issuer Trustee or any Swap Party by any "nationally recognized statistical rating organization" (as defined for purposes of ~~60,000,000 shares~~ Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of ~~Common Stock~~the Notes or any debt securities of any of the Trust Manager, ~~par value $1.00 per share~~▇▇.▇▇▇▇▇▇, ~~14,000,000 shares~~ the Issuer Trustee or any Swap Party (other than an announcement with positive implications of ~~Class A common stock, par value $5.00 per share~~a possible upgrading, and ~~77,000,000 shares~~ no implication of ~~preferred stock~~a possible downgrading, ~~$1.00 par value per share;~~ of such rating); (iii) ~~The issued and outstanding shares~~ any material suspension or material limitation of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided trading in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading generally on the New York Stock Exchange~~; (xiii) To such counsel's knowledge~~, ~~neither~~ the ~~Company nor the Significant Subsidiary is, nor with the giving of notice~~ London Stock Exchange or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and any other ~~representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during~~ exchange on which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the ProspectusNotes are listed, or any ~~amendment or supplement thereto including any document incorporated by reference therein, as~~ setting of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that minimum prices for trading on such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectusexchange, or any ~~amendment or supplement thereto including~~ suspension of trading of any ~~document incorporated by reference therein). To the extent that~~ securities of any of ~~such opinions are stated to be based upon such counsel's knowledge or to be given "to~~ the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set foTrust

Appears in 1 contract

Sources: Underwriting Agreement (Crusade Management LTD)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Bonds will be subject to the accuracy of the representations and warranties on the part of the Company ~~herein set forth as of the date hereof and as of each Closing Date~~herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Company made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Prospectus shall have been ~~declared effective~~ filed by the Company with the Commission ~~not later than 5:30 p.m., Washington, D.C. time, on~~ pursuant to Rule 424(b) within the ~~date of this Agreement, or such later~~ applicable time period prescribed for filing by the 1933 Act Regulations and ~~date as~~ in accordance herewith and each Permitted Free Writing Prospectus shall have been ~~consented to~~ filed by the ~~Representatives~~Company with the Commission within the applicable time periods prescribed for such filings by, ~~which consent shall be deemed~~ and otherwise in compliance with, Rule 433. (b) On or after the Applicable Time and prior to ~~have been given if~~ the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued by and no proceedings for that purpose or pursuant to Section 8A of the ~~Commission or any state securities commission nor~~1933 Act shall have been instituted or, to the knowledge of the ~~Company~~Company or you, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be threatened by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) ~~Subsequent~~ On or after the Applicable Time and prior to the ~~execution~~ Closing Date, the rating assigned by ▇▇▇▇▇’▇ Investors Service, Inc., Standard & Poor’s Ratings Services or Fitch Ratings Inc. (or any of their successors) to any debt securities or preferred stock of the Company as of the date of this ~~Agreement,~~Agreement shall not have been lowered. (id) Since the respective most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus and up to the Closing Date, there shall not have ~~occurred~~ been any material adverse change in the condition of the Company, financial or ~~development involving~~otherwise, except as reflected in or ~~which could be reasonably expected~~ contemplated by the Pricing Disclosure Package and the Prospectus, and, since such dates and up to ~~involve~~the Closing Date, ~~a Material Adverse Effect, whether or~~ there shall not ~~arising from~~ have been any material transaction entered into by the Company other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which ~~on the Company,~~ in ~~any such case described in clause (i) or (ii) above,~~ your reasonable judgment is ~~in the reasonable and good faith opinion of the Representatives~~ so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Shares~~ Bonds on the terms and in the manner contemplated in by the ~~Registration Statement~~ Pricing Disclosure Package and the Prospectus. (ce) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives You shall have received ~~opinions~~ an opinion of ~~Foley & Lardner, special couns~~▇▇▇▇ ▇. ▇r ▇▇▇▇▇▇, Esq., Deputy General Counsel of Duke Energy Business Services, LLC, the ~~Company~~ service company subsidiary of Duke Energy Corporation (as who in such capacity provides legal services to the ~~matters set forth below in subsections (i~~Company), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the ~~First Closing Date or the Second~~ Closing Date~~, as the case may be~~, to the effect that: (i) The Company has been duly organized and is validly existing as a ~~corporation~~ limited liability company in good standing under the laws of ~~Delaware~~the State of Florida, with ~~full corporate~~ power and authority (limited liability company and other) to ~~own, lease and operate~~ own its properties and conduct its business as ~~presently conducted and as~~ described in the Pricing Disclosure Package and the Prospectus and ~~the Registration Statement;~~to enter into and perform its obligations under this Agreement. (ii) The ~~authorized capital stock~~ Company is duly qualified to do business in each jurisdiction in which the ownership or leasing of its property or the conduct of its business requires such qualification, except where the failure to so qualify, considering all such cases in the aggregate, does not have a material adverse effect on the business, properties, financial condition or results of operations of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share;Company. (iii) The ~~issued and outstanding shares of capital stock~~ Registration Statement became effective upon filing with the Commission pursuant to Rule 462 of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted)1933 Act Regulations, and, to the best of such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's ’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened by under the ~~Commission;~~ 1933 Act. (iv) The descriptions in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package and the Prospectus ~~and~~ of any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings ~~that~~ are accurate and fairly present the information required to be ~~described~~ shown, and such counsel does not know of any litigation or any legal or governmental proceeding instituted or threatened against the Company or any of its properties that would be required to be disclosed in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package or the Prospectus ~~that are~~ and is not so ~~described~~disclosed. (v) This Agreement has been duly authorized, ~~nor~~executed and delivered by the Company. (vi) The issue and sale of the Bonds by the Company and the execution, to delivery and performance by the Company of this Agreement, the Mortgage and the Bonds will not contravene any of the provisions of the Articles of Organization or the Limited Liability Company Operating Agreement, the Florida Revised Limited Liability Company Act or any statute or any order, rule or regulation of which such ~~counsel's knowledge~~counsel is aware of any court or governmental agency or body having jurisdiction over the Company or any of its property, ~~is there~~ nor will such action conflict with or result in a breach or violation of any ~~transaction~~of the terms or provisions of, ~~relationship~~or constitute a default under any indenture, ~~agreement~~mortgage, ~~contract~~ deed of trust, loan agreement or other ~~document of~~ agreement to which the Company is a ~~character required to be described in the Registration Statement~~ party or ~~the Prospectus,~~ by which it or ~~required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein,~~ its property is bound or to ~~be filed as an exhibit to~~ which any of its property or ~~incorporated by reference in the Registration Statement by the Act, which~~ assets is ~~not described,~~ subject or any instrument filed or incorporated by reference ~~required;~~as an exhibit to the Annual Report on Form 10-K of the Company for the fiscal year ended December 31, 2015 or any subsequent Quarterly Report on Form 10-Q of the Company or Current Report on Form 8-K of the Company with an execution or filing date after December 31, 2015 which affects in a material way the Company’s ability to perform its obligations under this Agreement, the Mortgage or the Bonds. (vii) The Florida Public Service Commission has issued an appropriate order with respect to the issuance and sale of the Bonds in accordance with this Agreement, and, to the best of such counsel’s knowledge, such order is still in effect and the issuance and sale of the Bonds to the Underwriters are in conformity with the terms of such order. (viii) ~~Statements set forth in the Prospectus~~ The Mortgage has been duly qualified under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings;1939 Act. (ix) The ~~Company~~ Mortgage has ~~full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have~~ been duly and validly authorized ~~by the Company~~ by all necessary ~~corporate action and this Agreement~~ limited liability company action, has been duly and validly executed and delivered by ~~and on behalf of~~ the Company, and is a ~~legal,~~ valid and binding ~~agreement~~ mortgage of the Company enforceable in accordance with its terms; provided, however, that certain remedies, waivers and other provisions of the Mortgage may not be enforceable, but such unenforceability will not render the Mortgage invalid as a whole or affect the judicial enforcement of (A) the obligation of the Company to repay the principal, together with the interest thereon as provided in the Bonds or (B) the right of the Trustee to exercise its right to foreclose under the Mortgage. (x) The Bonds have been duly authorized, executed and issued by the Company and, when the same have been authenticated by the Trustee as specified in the Mortgage and delivered against payment therefor, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with ~~its~~ their terms, and are entitled to the benefits and security afforded by the Mortgage in accordance with the terms of the Mortgage and the Bonds, except as set forth in paragraph (ix) above. (xi) The Company has good and marketable title, with minor exceptions, restrictions and reservations in conveyances, and defects that ~~rights~~ are of the nature ordinarily found in properties of similar character and magnitude and that, in such counsel’s opinion, will not in any substantial way impair the security afforded by the Mortgage, to ~~indemnity~~ all the properties described in the granting clauses of the Mortgage and upon which the Mortgage purports to create a lien. The description in the Mortgage of the above-mentioned properties is legally sufficient to constitute the Mortgage a lien upon said properties, including, without limitation, properties hereafter acquired by the Company (other than those expressly excepted and reserved therefrom). Said properties constitute substantially all the permanent physical properties and franchises (other than those expressly excepted and reserved therefrom) of the Company and are held by the Company free and clear of all liens and encumbrances except the lien of the Mortgage and excepted encumbrances, as defined in the Mortgage. The properties of the Company are subject to liens for current taxes, which it is the general practice of the Company to pay regularly as and when due. The Company has easements for rights-of-way adequate for the operation and maintenance of its transmission and distribution lines that are not constructed upon public highways. The Company has followed the practice generally of acquiring (i) certain rights-of-way and easements and certain small parcels of fee property appurtenant thereto and for use in conjunction therewith and (ii) certain other properties of small or ~~contribution hereunder~~ inconsequential value, without an examination of title and, as to the title to lands affected by said rights-of-way and easements, of not examining the title of the lessor or grantor whenever the lands affected by such rights-of-way and easements are not of such substantial value as in the opinion of the Company to justify the expense attendant upon examination of titles in connection therewith. In the opinion of said counsel, such practice of the Company is consistent with sound economic practice and with the method followed by other companies engaged in the same business and is reasonably adequate to assure the Company of good and marketable title to all such property acquired by it. It is the opinion of said counsel that any such conditions or defects as may be ~~limited~~ covered by ~~applicable~~ the above recited exceptions are not substantial and would not materially interfere with the Company’s use of such properties or with its business operations. The Company has the right of eminent domain in the State of Florida under which it may, if necessary, perfect or obtain title to privately owned land or acquire easements or rights-of-way required for use or used by the Company in its public utility operations. (xii) The Mortgage constitutes a valid, direct and first mortgage lien of record upon all franchises and properties now owned by the Company (other than those expressly excepted from the lien of the Mortgage and other than those franchises and properties which are not, individually or in the aggregate, material to the Company or the security afforded by the Mortgage) situated in the State of Florida, as described or referred to in the granting clauses of the Mortgage. (xiii) The Mortgage, other than the Supplemental Indenture, has been recorded and filed in such manner and in such places as may be required by law in order to fully preserve and protect, in all material respects, the security of the bondholders and all rights of the Trustee thereunder, and the Supplemental Indenture relating to the Bonds is in proper form for filing for record, both as a real estate mortgage and as a security interest, in all counties in the State of Florida in which any of the property (except as any therein or in the Mortgage are expressly excepted) described therein or in the Mortgage as subject to ~~enforceability~~ the lien of the Mortgage is located and, as a security interest, with the Surface Transportation Board and, upon such recording, the Supplemental Indenture will constitute adequate record notice to perfect the lien of the Mortgage, and preserve and protect, in all material respects, the security of the bondholders and all rights of the Trustee, as to all mortgaged and pledged property acquired by the Company subsequent to the recording of the Fifty-Second Supplemental Indenture dated as of August 1, 2015 and prior to the recording of the Supplemental Indenture. (xiv) No consent, approval, authorization, order, registration or qualification of or with any federal or Florida governmental agency or body or, to such counsel’s knowledge, any federal or Florida court, which has not been obtained or taken and is not in full force and effect, is required for the issue and sale of the Bonds by the Company and the compliance by the Company with all of the provisions of this ~~Agreement~~ Agreement, except for the registration under the 1933 Act of the Bonds, and such consents, approvals, authorizations, registrations or qualifications as may be ~~limited~~ required under state securities or Blue Sky laws in connection with the purchase and distribution of the Bonds by the Underwriters. Such counsel may state that such counsel’s opinions in paragraphs (ix), (x) and (xii) above are subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and other similar laws relating to or affecting creditors' ’ rights generally, and by ~~equitable~~ general principles ~~limiting~~ of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and to an implied covenant of good faith and fair dealing. Such counsel may also state that such counsel’s opinion in paragraph (xi) above is based upon the ~~right to specific performance or other equitable relief; and,~~ Company’s title insurance. Such counsel shall state that nothing has come to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument ’s attention that has caused such counsel to ~~which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or~~ believe that each document incorporated by reference ~~as an exhibit to~~ in the Registration Statement~~; or (C) violate any statute~~, ~~ordinance~~the Pricing Disclosure Package and the Prospectus, ~~order~~when filed, ~~rule~~was not, ~~decree or regulation of any court~~on its face, ~~regulatory or governmental body~~appropriately responsive, ~~arbitrator~~in all material respects, ~~administrative agency or other instrumentality~~ to the requirements of the ~~United States having jurisdiction over~~ 1934 Act and the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the 1934 Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amendedRegulations. Such counsel shall also state that ~~they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their~~ nothing has come to such counsel’s attention that has caused such counsel ~~during which the content of~~ to believe that (i) the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness as of the ~~statements contained or incorporated by reference into~~ effective date with respect to the ~~Registration Statement or the Prospectus, on the basis~~ Underwriters pursuant to Rule 430B(f)(2) of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date1933 Act Regulations, contained any untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package at the Applicable Time contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) that the ~~Prospectus,~~ Prospectus or any amendment or supplement ~~thereto including any document incorporated by reference therein~~thereto, as of ~~its issue date and as of~~ their respective dates, or at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not ~~misleading (~~misleading. Such counsel may also state that, except as otherwise expressly provided ~~that~~ in such opinion, such counsel ~~need express no belief regarding~~ does not assume any responsibility for the ~~financial~~ accuracy, completeness or fairness of the statements ~~and related schedules and other financial or statistical data~~ contained in or incorporated by reference into the Registration Statement, the Pricing Disclosure Package or the Prospectus and does not express any ~~amendment thereto including any document~~ opinion or belief as to (i) the financial statements or other financial and accounting data contained or incorporated by reference therein, or excluded therefrom including XBRL interactive data, (ii) the ~~Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any~~ statement of ~~such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such~~ eligibility and qualification ~~shall signify that no information has come to the attention~~ of the ~~attorneys~~ Trustee included in ~~such firm who have been involved in the preparation or review of~~ the Registration Statement (the “Form T-1”) or (iii) the information in the Prospectus ~~that would give them actual current knowledge of~~ under the ~~existence or absence of such matter in question.~~ caption “Book-Entry System.” In rendering ~~such~~ the foregoing opinion, such counsel ~~for the Company~~ may ~~rely, to the extent~~ state that such counsel ~~deems such reliance proper,~~ has relied as to certain factual matters ~~of fact upon certificates of~~ on information obtained from public officials, officers of the Company and ~~any governmental officials, and copies of all~~ other sources believed by such ~~certificates shall~~ counsel to be ~~furnished to the Representatives and for the Underwriters on or before each Closing Date~~responsible. (ef) ~~The Representatives~~ You shall have received an opinion of ~~Michael Best~~ Hunton & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ~~▇▇▇ ▇▇ief Financial Officer~~LLP, ~~and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of~~ counsel to the Company, ~~in their respective capacities as such~~dated the Closing Date, to the effect that: (i) The ~~representations~~ statements (i) under the caption “Description of First Mortgage Bonds” in the Base Prospectus and ~~warranties~~ (ii) under the caption “Description of the ~~Company set forth~~ Mortgage Bonds” in ~~Section 2 hereof are true~~ the Pricing Disclosure Package and ~~correct~~ the Prospectus, insofar as such statements purport to summarize certain provisions of the ~~date of this Agreement and as of the date of such certificate,~~ Mortgage and the ~~Company has complied~~ Bonds, fairly summarize such provisions in all material ~~respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate;~~respects. (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatoriesNo Governmental Approval, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which ~~the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that~~ has not been ~~so set fo~~obtained or taken and is not in full force and effect, is required to authorize, or is required for, the execution or delivery of this Agreement by

Appears in 1 contract

Sources: Underwriting Agreement (Duke Energy Florida, Llc.)

Conditions of the Obligations of the Underwriters. The obligations of the ~~several~~ Underwriters ~~under this Agreement shall~~ to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of the date hereof~~ Depositor and ~~as of each Closing Date~~DCFS herein, to the accuracy of the ~~statements~~ certifications of officers of the ~~Company's officers~~ Depositor and DCFS made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Depositor of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The Registration Statement shall ~~have been declared~~ be effective by at the ~~Commission not later than 5:30 p.m.~~Execution Time, ~~Washington~~and prior to the Closing Date, D.C. time, on the date of this Agreement, or such later time and date as shall have been consented to by the Representatives, which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued by and no proceedings for that purpose or pursuant to Section 8A of the ~~Commission or any state securities commission nor~~Act shall have been instituted or, to the knowledge of the ~~Company~~Depositor or the Representatives, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion Each of the ~~Representatives so material~~ Preliminary Prospectus and ~~adverse as to make it impracticable or inadvisable to proceed~~ the Prospectus and any supplements thereto shall have been filed (if required) with the ~~public offering or~~ Commission in accordance with the ~~delivery~~ Rules and Regulations and Section 5(a) hereof. The Pricing Free Writing Prospectus shall have been filed with the Commission in accordance with Rule 433(d) of the ~~Shares on the terms~~ Rules and ~~in the manner contemplated in the Registration Statement and the Prospectus~~Regulations. (c) ~~The Representatives shall not have advised~~ On or prior to the ~~Company that~~ date of this Agreement and on or prior to the ~~Registration Statement or Prospectus contains an untrue statement of fact that~~Closing Date, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives shall have received opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date a letter or the Second Closing Date, as the case may be, to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇tersletters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the ~~date~~ Closing Date, respectively, of KPMG LLP, independent registered public accountants, substantially in the form of the drafts to which the Representatives have previously agreed and otherwise in form and substance satisfactory to the Representatives and their counsel. (d) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Issuing Entity, the Depositor or DCFS which, in the judgment of the Representatives, materially impairs the investment quality of the Notes or makes it impractical or inadvisable to market the Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum or maximum prices for trading on such ~~certificate~~exchange, or a material disruption in commercial banking or securities settlement or clearance services in the United States or with respect to Clearstream or Euroclear systems in Europe; (iii) any general commercial banking moratorium declared by Federal, Delaware or New York authorities; or (vi) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress, or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Representatives, the effect of any such outbreak, escalation, declaration, calamity or emergency on the U.S. financial markets makes it impractical or inadvisable to proceed with the offering, sale of and payment for the Notes. (e) The Representatives shall have received opinions of Sidley Austin LLP, counsel to DCFS, the Depositor and the Issuing Entity and such other counsel acceptable to the Underwriters addressed to the Representatives, dated the Closing Date and satisfactory in form and substance to the Representatives and their counsel, substantially to the effect that: (i) DCFS is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals in each jurisdiction in which failure to qualify or to obtain such license or approval would render any Receivable unenforceable by the ~~Company has complied in all material respects with all~~ Depositor, the ~~agreements and satisfied all~~ Owner Trustee or the ~~conditions to be performed or satisfied by it at or prior to the date of such certificate;~~Indenture Trustee. (ii) The ~~Commission~~ Depositor is duly qualified to do business and is in good standing, and has ~~not issued an order preventing~~ obtained all necessary licenses and approvals in each jurisdiction in which failure to qualify or ~~suspending~~ to obtain such license or approval would have a material adverse effect on the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction;Receivables as a whole. (iii) When the Notes have been duly executed and delivered by the Owner Trustee on behalf of the Issuing Entity, authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be duly issued, will constitute legal, valid and binding obligations of the Issuing Entity enforceable against the Issuing Entity in accordance with their terms and will be entitled to the benefits and security afforded by the Indenture, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability. (iv) Each of the ~~respective signatories~~ Basic Documents (other than the Trust Agreement) to which the Depositor is a party has ~~examined~~ been duly executed and delivered by the ~~Registration Statement~~ Depositor, and is a legal, valid and binding obligation of the Depositor enforceable against the Depositor in accordance with its terms except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability. (v) This Agreement has been duly executed and delivered by each of the Depositor and DCFS. (vi) Each of the Basic Documents to which DCFS is a party has been duly executed and delivered by DCFS and is a legal, valid and binding obligation of DCFS enforceable against DCFS in accordance with its terms except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability. (vii) Each of the Basic Documents to which the Issuing Entity is a party is the legal, valid and binding obligations of the Issuing Entity, enforceable against the Issuing Entity in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability. (viii) The execution and delivery by DCFS, the Depositor or the Issuing Entity of this Agreement or any Basic Document to which it is a party, and the ~~Prospectus~~performance of their respective obligations hereunder and thereunder, will not (1) conflict with, or result in a breach, violation or acceleration of, or constitute a default under, any term or provision of any indenture or other agreement or instrument to which DCFS or the Depositor is a party or by which either of them is bound, or (2) result in a violation of or contravene the terms of any statute, order or regulation applicable to DCFS or the Depositor of any court, regulatory body, administrative agency or governmental body having jurisdiction over either of them. (ix) There are no actions, proceedings or investigations pending or, to the best of such counsel’s knowledge, threatened before any court, administrative agency, or other tribunal (1) asserting the invalidity of the Issuing Entity or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, or (3) that could reasonably be expected to materially and adversely affect the performance (A) by DCFS of its obligations under, or the validity or enforceability of, this Agreement, the Administration Agreement, the Receivables Purchase Agreement or the Sale and Servicing Agreement or (B) by the Depositor of its obligations under, or the validity or enforceability of, this Agreement, the Receivables Purchase Agreement, the Trust Agreement or the Sale and Servicing Agreement. (x) No consent, approval, authorization or order of, or filing with, any ~~amendment~~ court or ~~supplement thereto, including any documents filed under~~ governmental agency or body is required for the ~~Exchange Act and deemed to be incorporated by reference~~ consummation of the transactions contemplated in the ~~Registration Statement~~Basic Documents, except for such filings with respect to the transfer of the Receivables to the Depositor pursuant to the Receivables Purchase Agreement and the transfer of the Receivables to the Issuing Entity pursuant to the Sale and Servicing Agreement and as may be required under state securities or Blue Sky laws of various jurisdictions. (xi) To the best knowledge of such ~~documents contain all statements of material fact required to be stated therein~~counsel, no default exists and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred ~~that was required~~ which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any agreement to ~~be set forth~~ which DCFS or the Depositor is a party or by which either of them is bound, which default is or would have a material adverse effect on the financial condition, earnings, business or properties of DCFS and its subsidiaries, taken as a whole. (xii) The First Tier Assignment (as defined in ~~an amended or supplemented prospectus or in an amendment~~ the Receivables Purchase Agreement) dated as of the Closing Date from DCFS to the ~~Registration Statement that~~ Depositor (the “DCFS First Tier Assignment”) has ~~not~~ been ~~so set fo~~duly executed and delivered by DCFS and constitutes the legal, valid and binding obligation of DCFS, enforceable against DCFS in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability. (xiii) Regarding (x) the “true sale” of the Receivables from DCFS to the Depositor pursuant to the Receivables Purchase Agreement and (y) substantive non-consolidation issues with respect to DCFS and the Depositor. (xiv) The Receivables Purchase Agreement grants to the Depositor a valid security interest in DCFS’s rights in the Receivables and the

Appears in 1 contract

Sources: Underwriting Agreement (Mercedes-Benz Auto Receivables Trust 2010-1)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall be~~ to purchase and pay for the Firm Shares on the Closing Date and the Additional Shares on any Option Closing Date are subject to the ~~accuracy~~ fulfillment of each of the ~~representations~~ following conditions on or prior to the Closing Date and ~~warranties on the part of the Company herein set forth as of the date hereof and as of~~ each Option Closing Date, to the accuracy of the statements of the Company's officers made pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder, and to the following additional conditions, unless waived in writing by the Representatives: (a) All the representations and warranties of the Offerors contained in this Agreement and in any certificate delivered hereunder shall be true and correct on the Closing Date and each Option Closing Date with the same force and effect as if made on and as of the Closing Date or Option Closing Date, as applicable. The Offerors shall not have failed at or prior to the Closing Date or Option Closing Date, as applicable, to perform or comply in all material respects with any of the agreements herein contained and required to be performed or complied with by the Offerors at or prior to the Closing Date or the Option Closing Date, as applicable. (b) If the Registration Statement is not effective at the time of the execution and delivery of this Agreement, the Registration Statement shall have ~~been declared~~ become effective by (or, if a post-effective amendment is required to be filed pursuant to Rule 430A under the ~~Commission~~ Act, such post-effective amendment shall have become effective) not later than ~~5:30 p.m.~~9:30 A.M., ~~Washington, D.C.~~ New York City time, on the date of this ~~Agreement,~~ Agreement or such later time ~~and date~~ as ~~shall have been consented to by~~ the ~~Representatives~~Representatives may approve in writing or, ~~which consent shall be deemed to have been given~~ if the Registration Statement has been declared effective prior to the execution and delivery hereof in reliance on Rule 430A, the Prospectus shall have been ~~declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under~~ filed as required by the Act, if necessary; ~~all filings required by Rules 424(b)~~ and ~~430A under~~ at the ~~Act shall have been timely made;~~ Closing Date and each applicable Option Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor, to the knowledge of the Company, shall any~~ and no proceedings for that purpose shall have been ~~instituted~~ commenced or ~~threatened~~shall be pending before or, to the best knowledge of the Underwriters or the Offerors, threatened by the Commission; ~~and any~~ every request for additional information on the part of the Commission ~~or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise,~~ shall have been complied with to the ~~reasonable satisfaction of~~ Underwriters' satisfaction; no stop order suspending the Representatives acting in good faith. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery sale of the Shares on in any jurisdiction referred to in Section 5(h) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or, to the ~~terms and in~~ best knowledge of the ~~manner contemplated in~~ Underwriters or the ~~Registration Statement and the Prospectus~~Offerors, threatened. (c) The ~~Representatives~~ Shares shall ~~not~~ have been qualified for sale (or an exemption from such qualification shall have been secured) under the Blue Sky laws of such states as shall have been specified by the Representatives. (d) The legality and sufficiency of the authorization, issuance and sale or transfer and sale of the Shares hereunder, the validity and form of the certificates representing the Shares, the execution and delivery of this Agreement and all corporate proceedings and other legal matters incident thereto, and the form of the Registration Statement and the Prospectus (except financial statements) shall have been approved by counsel for the Underwriters exercising reasonable judgment, and no Underwriter shall have advised the ~~Company~~ Offerors that the Registration Statement or ~~Prospectus~~ the Prospectus, or any amendment or supplement thereto, contains an untrue statement of ~~fact that~~material fact, ~~in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material~~ or omits to state a fact ~~that,~~ that in the ~~reasonable and good faith~~ Representatives' opinion ~~of the Representatives or such counsel,~~ is material and is required to be stated therein or is necessary to make the statements therein not misleading. (de) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any material change, or any development involving a prospective material change, in or affecting particularly the business or properties of the Trust, the Company or any Subsidiary, whether or not arising in the ordinary course of business, that, in the reasonable judgment of the Representatives, makes it impractical or inadvisable to proceed with the public offering or purchase of the Shares as contemplated hereby, or (ii) any event described in clauses (ii)-(vii) of the second paragraph of Section 9 hereof. (f) The ~~Representatives~~ Underwriters shall have received ~~opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company~~ an opinion (as satisfactory to ~~the matters set forth below in subsections (i), (ii), (vi), (viii), (ix~~them and their counsel) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the ~~First~~ Closing Date or the ~~Second~~ Option Closing Date, as the case may be, of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special counsel for the Offerers, in form and substance satisfactory to the Representatives and attached hereto as Exhibit B-1; the Underwriters shall have received an opinion (satisfactory to them and their counsel) dated the Closing Date or the Option Closing Date, as the case may be, of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., special counsel for the Property Trustee, the Indenture Trustee and the Guarantee Trustee, in form and substance satisfactory to the Representatives and attached hereto as Exhibit B-2. (g) The Underwriters shall have received an opinion (satisfactory to them and their counsel) dated the Closing Date or the Option Closing Date, as the case may be, of Stoel Rives LLP, counsel for the Company, in form and substance satisfactory to the Representatives and attached hereto as Exhibit B-3. (h) The Underwriters shall have received an opinion (satisfactory to the Underwriters and their counsel) dated the Closing Date or the Option Closing Date, as the case may be, of G▇▇▇▇▇ & M▇▇▇▇▇▇, counsel for the Company, in form and substance satisfactory to the Representatives and attached hereto as Exhibit B-4. (i) The Underwriters shall have received an opinion of Irell & M▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Representatives and attached hereto as Exhibit B-5. (j) The Underwriters shall have received, in connection with the execution of this Agreement and on the Closing Date and each Option Closing Date, a "cold comfort" letter from Deloitte & Touche, LLP, dated as of each such date in form and substance satisfactory to the Representatives with respect to the financial statements and certain financial information and data contained in the Registration Statement and the Prospectus [SEPARATE COMFORT FROM MALAYSIAN ACCOUNTANTS]. (k) The Underwriters shall have received from the Company a certificate, signed by M▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and W▇▇▇▇▇▇ ▇. ▇▇▇▇▇ in their capacities as the President and Chief Operating Officer of the Company and Vice President and CFO of the Company, respectively, addressed to the Underwriters and dated the Closing Date or Option Closing Date, as applicable, to the effect that: (i) ~~The~~ such officer does not know of any Proceedings instituted, threatened or contemplated against the Company ~~is validly existing as~~ or any Subsidiary of a ~~corporation in good standing under the laws of Delaware, with full corporate power and authority~~ character required to ~~own, lease and operate its properties and conduct its business as presently conducted and as described~~ be disclosed in the Prospectus ~~and~~ that are not so disclosed; such officer does not know of any material contract required to be filed as an exhibit to the Registration ~~Statement~~Statement which is not so filed; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement officer has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; carefully examined the Registration Statement and the Prospectus and ~~any amendment~~ all amendments or ~~supplement thereto~~supplements thereto and, ~~including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein~~in such officer's opinion, ~~as to which~~ such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or ~~the Prospectus that are not so described, nor, to~~ such ~~counsel's knowledge, is there any transaction, relationship, agreement, contract or other document~~ amendment as of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed its effective date and as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the ~~Common Stock contained in the Company's Registration Statement on Form 8-A~~Closing Date, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus or such supplement as of its date and ~~related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness~~ as of the ~~statements contained or incorporated by reference into the Registration Statement or the Prospectus~~Closing Date, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any did not contain an untrue statement of material fact or ~~omitted or omits~~ omit to state ~~any~~ a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements thereinmisleading and, in ~~light~~ such officer's opinion, since the effective date of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, ~~any amendment thereto including any document incorporated by reference therein,~~ no event has occurred or ~~the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent~~ information become known that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who should have been ~~involved~~ set forth in ~~the preparation or review of~~ an amendment to the Registration Statement or a supplement to the Prospectus ~~that would give them actual current knowledge of the existence~~ which has not been so set forth in such amendment or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date.supplement; (eiii) ~~The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇~~ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section ~~2 hereof~~ 6 of this Agreement are true and correct as of the date of this Agreement and as of the ~~date of such certificate~~Closing Date or the Option Closing Date, as the case may be, and the Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~by it~~ at or prior to such Closing Date or the ~~date of such certificate;~~Option Closing Date, as the case may be; and (iiiv) ~~The~~ the Commission has not issued an order preventing or suspending the use of the Prospectus or any ~~Preliminary Prospectus~~ preliminary prospectus filed as a part of the Registration Statement or any amendment ~~or supplement~~ thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; ~~and~~ and, to the best knowledge of the respective ~~signatories~~officers, no proceedings for that purpose have been ~~initiated~~ instituted or are pending or contemplated under the ~~Act~~ Act. The delivery of the certificate provided for in this subparagraph shall be and constitute a representation and warranty of the Company as to the facts set forth in said certificate. (l) The Underwriters shall have received from the Trust a certificate, signed by each of the Administrative Trustees, addressed to the Underwriters and dated the Closing Date or ~~under~~ Option Closing Date, as applicable, to the ~~Blue Sky Laws~~ effect that: (i) such trustee does not know of any ~~jurisdiction~~Proceedings instituted, threatened or contemplated against the Trust of a character required to be disclosed in the Prospectus that are not so disclosed; such trustee does not know of any material contract required to be filed as an exhibit to the Registration Statement which is not so filed; (~~iii~~ii) ~~Each of the respective signatories~~ such trustee has carefully examined the Registration Statement and the ~~Prospectus~~Prospectus and all amendments or supplements thereto and, in such trustee's opinion, such Registration Statement or such amendment as of its effective date and as of the Closing Date, and ~~any amendment~~ the Prospectus or such supplement ~~thereto~~as of its date and as of the Closing Date, ~~including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents~~ did not contain ~~all statements of material fact required to be stated therein, and do not include any~~ an untrue statement of a material fact or omit to state ~~any~~ a material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading~~misleading and, ~~and~~ in such trustee's opinion, since the effective date ~~on which~~ of the Registration ~~Statement was initially filed~~Statement, no event has occurred or information become known that ~~was required to be~~ should have been set forth ~~in an amended or supplemented prospectus or~~ in an amendment to the Registration Statement ~~that~~ or a supplement to the Prospectus which has not been so set foforth in such amendment or supplement; (iii) the representations and warranties of the Trust set forth in Section 6 of this Agreement are true and correct as of the date of this Agreement and as of the Closing Date or the Option Closing Date, as the case may be, and the Trust has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date or the Option Closing Date, as the case may be; and (iv) the Commission has not issued an order preventing or suspending the use of the Prospectus or any preliminary prospectus filed as a part of the Registration Statement or any amendment thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and, to the best knowledge of the respective trustees, no proceedings for that purpose have been instituted or are pending or contemplated under the Act. The delivery of the certificate provided for in this subparagraph shall be and constitute a representation and warranty of the Offerors as to the facts set forth in said certificate.

Appears in 1 contract

Sources: Underwriting Agreement (Praegitzer Industries Inc)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Bonds will be subject to the accuracy of the representations and warranties on the part of the Company ~~herein set forth as of the date hereof and as of each Closing Date~~herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Company made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Prospectus shall have been ~~declared effective~~ filed by the Company with the Commission ~~not later than 5:30 p.m., Washington, D.C. time, on~~ pursuant to Rule 424(b) within the ~~date of this Agreement, or such later~~ applicable time period prescribed for filing by the 1933 Act Regulations and ~~date as~~ in accordance herewith and each Permitted Free Writing Prospectus shall have been ~~consented to~~ filed by the ~~Representatives~~Company with the Commission within the applicable time periods prescribed for such filings by, ~~which consent shall be deemed~~ and otherwise in compliance with, Rule 433. (b) On or after the Applicable Time and prior to ~~have been given if~~ the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued by and no proceedings for that purpose or pursuant to Section 8A of the ~~Commission or any state securities commission nor~~1933 Act shall have been instituted or, to the knowledge of the ~~Company~~Company or you, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be threatened by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) ~~Subsequent~~ On or after the Applicable Time and prior to the ~~execution~~ Closing Date, the rating assigned by ▇▇▇▇▇’▇ Investors Service, Inc., Standard & Poor’s Ratings Services or Fitch Ratings Inc. (or any of their successors) to any debt securities or preferred stock of the Company as of the date of this ~~Agreement,~~Agreement shall not have been lowered. (id) Since the respective most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus and up to the Closing Date, there shall not have ~~occurred~~ been any material adverse change in the condition of the Company, financial or ~~development involving~~otherwise, except as reflected in or ~~which could be reasonably expected~~ contemplated by the Pricing Disclosure Package and the Prospectus, and, since such dates and up to ~~involve~~the Closing Date, ~~a Material Adverse Effect, whether or~~ there shall not ~~arising from~~ have been any material transaction entered into by the Company other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which ~~on the Company,~~ in ~~any such case described in clause (i) or (ii) above,~~ your reasonable judgment is ~~in the reasonable and good faith opinion of the Representatives~~ so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Shares~~ Bonds on the terms and in the manner contemplated in by the ~~Registration Statement~~ Pricing Disclosure Package and the Prospectus. (ce) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives You shall have received ~~opinions~~ an opinion of ~~Foley & Lardner, special couns~~▇▇▇▇▇▇ ▇. ▇r ▇▇▇▇ III, Esq., Deputy General Counsel of Duke Energy Business Services, LLC, the ~~Company~~ service company subsidiary of Duke Energy Corporation (as who in such capacity provides legal services to the ~~matters set forth below in subsections (i~~Company), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the ~~First Closing Date or the Second~~ Closing Date~~, as the case may be~~, to the effect that: (i) The Company has been duly organized and is validly existing as a ~~corporation~~ limited liability company in good standing under the ~~laws~~ law of ~~Delaware~~the State of North Carolina, with ~~full corporate~~ power and authority (limited liability company and other) to ~~own, lease and operate~~ own its properties and conduct its business as ~~presently conducted and as~~ described in the Pricing Disclosure Package and the Prospectus and ~~the Registration Statement;~~to enter into and perform its obligations under this Agreement. (ii) The ~~authorized capital stock~~ Company is duly qualified to do business in each jurisdiction in which the ownership or leasing of its property or the conduct of its business requires such qualification, except where the failure to so qualify, considering all such cases in the aggregate, does not have a material adverse effect on the business, properties, financial condition or results of operations of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share;Company. (iii) The ~~issued and outstanding shares of capital stock~~ Registration Statement became effective upon filing with the Commission pursuant to Rule 462 of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted)1933 Act Regulations, and, to the best of such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's ’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened by under the ~~Commission;~~ 1933 Act. (iv) The descriptions in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package and the Prospectus ~~and~~ of any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings ~~that~~ are accurate and fairly present the information required to be ~~described~~ shown, and such counsel does not know of any litigation or any legal or governmental proceeding instituted or threatened against the Company or any of its properties that would be required to be disclosed in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package or the Prospectus ~~that are~~ and is not so ~~described~~disclosed. (v) This Agreement has been duly authorized, ~~nor~~executed and delivered by the Company. (vi) The issue and sale of the Bonds by the Company and the execution, to delivery and performance by the Company of this Agreement, the Mortgage and the Bonds will not contravene any of the provisions of the Articles of Organization or the Operating Agreement, the North Carolina Limited Liability Company Act or any statute or any order, rule or regulation of which such ~~counsel's knowledge~~counsel is aware of any court or governmental agency or body having jurisdiction over the Company or any of its property, ~~is there~~ nor will such action conflict with or result in a breach or violation of any ~~transaction~~of the terms or provisions of, ~~relationship~~or constitute a default under any indenture, ~~agreement~~mortgage, ~~contract~~ deed of trust, loan agreement or other ~~document of~~ agreement to which the Company is a ~~character required to be described in the Registration Statement~~ party or ~~the Prospectus,~~ by which it or ~~required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein,~~ its property is bound or to ~~be filed as an exhibit to~~ which any of its property or ~~incorporated by reference in the Registration Statement by the Act, which~~ assets is ~~not described,~~ subject or any instrument filed or incorporated by reference ~~required;~~as an exhibit to the Annual Report on Form 10-K of the Company for the fiscal year ended December 31, 2014 or any subsequent Quarterly Report on Form 10-Q of the Company or Current Report on Form 8-K of the Company or identified in Annex A to this Agreement which affects in a material way the Company’s ability to perform its obligations under this Agreement, the Mortgage or the Bonds. (vii) The North Carolina Utilities Commission and the Public Service Commission of South Carolina have issued appropriate orders with respect to the issuance and sale of the Bonds in accordance with this Agreement, and, to the best of such counsel’s knowledge, such orders are still in effect; the issuance and sale of the Bonds to the Underwriters are in conformity with the terms of such orders. (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement Mortgage has been duly authorized, executed and delivered by the Company and ~~on behalf~~ qualified under the 1939 Act, and, assuming the due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument of the Company, ~~and is a legal, valid and binding agreement of the Company~~ enforceable against the Company in accordance with its terms, except ~~that rights to indemnity or contribution hereunder~~ (x) as the same may be limited by ~~applicable law~~ the laws of the States of North Carolina and South Carolina (in which States such counsel is advised all physical property of the Company subject to the Mortgage is located except for certain interconnection lines) with respect to or affecting the remedies to enforce the security provided by the Mortgage, which laws do not, in the opinion of such counsel, make inadequate the remedies necessary for the realization of the benefits of such security, and (y) that the provisions of the Mortgage subjecting to the lien thereof the revenues and income from the mortgaged property may not be effective prior to the delivery or taking of possession of such revenues or income or of the mortgaged property by or on behalf of the Trustee. (ix) The Bonds have been duly authorized, executed and issued by the Company and, when the same have been authenticated by the Trustee as specified in the Mortgage and delivered against payment therefor, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, and are entitled to the benefits and security afforded by the Mortgage in accordance with the terms of the Mortgage and the Bonds, except as set forth in paragraph (viii) above. (x) The Company has good title to ~~enforceability~~ all properties owned by it, subject only (a) to the lien of the Mortgage, (b) to permitted encumbrances as defined in the Mortgage, (c) to minor exceptions and defects which do not, in the aggregate, in the opinion of such counsel, materially interfere with the use by the Company of such properties for the purposes for which they are held, materially detract from the value of said properties or in any material way impair the security afforded by the Mortgage, and (d) in the case of the Company’s existing hydroelectric plants, to provisions of licenses issued by the Federal Power Commission or the Federal Energy Regulatory Commission and to the provisions of the Federal Power Act. (xi) The Mortgage complies as to form with all applicable laws of the states wherein the properties subjected or intended to be subjected to the lien of the Mortgage are located, including all applicable recording laws, and constitutes a valid, direct first mortgage lien on all properties and franchises purported to be owned by the Company, except such property as is specifically excepted from the lien thereof, subject only to the liens, charges and encumbrances stated in paragraph (x) above; all fixed electric properties hereafter acquired by the Company will, upon such acquisition, become subject to the lien of the Mortgage, subject, however, to liens or charges of the character permitted to exist by the Mortgage, and to liens, if any, existing or placed on such property at the time of the acquisition thereof by the Company, and the description of such property and franchises in the Mortgage is adequate to constitute a lien on such property and franchises of the Company except as aforesaid. (xii) The Original Mortgage and the supplemental indentures thereto, other than the Ninety-sixth Supplemental Indenture to be dated as of March 12, 2015 have been duly recorded or filed for recordation in all such offices as are necessary to perfect and to preserve and protect the lien of the Mortgage upon the property intended to be subjected to the lien thereof, and upon the filing and recording of the Ninety-sixth Supplemental Indenture to be dated as of March 12, 2015 no other recording or any periodic or other refiling or rerecording of the Mortgage is or will be required in order to perfect and to preserve and protect the lien of the Mortgage upon such property, and there are no mortgage, recording or other taxes required to be paid in connection with such filing and recording or in connection with the issuance of the Bonds other than customary filing and recording fees. (xiii) No consent, approval, authorization, order, registration or qualification of or with any federal, North Carolina or South Carolina governmental agency or body or, to such counsel’s knowledge, any federal or North Carolina court, which has not been obtained or taken and is not in full force and effect, is required to authorize or for the Company to consummate the transactions contemplated by this ~~Agreement~~ Agreement, except for such consents, approvals, authorizations, registrations or qualifications as may be ~~limited~~ required under state securities or Blue Sky laws in connection with the purchase and distribution of the Bonds by the Underwriters. Such counsel may state that such counsel’s opinions in paragraphs (viii) and (ix) are subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and other similar laws relating to or affecting creditors' ’ rights generally, and by ~~equitable~~ general principles ~~limiting~~ of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and to an implied covenant of good faith and fair dealing. Such counsel may also state that such counsel’s opinion in paragraph (x) is based upon the ~~right to specific performance or other equitable relief; and,~~ Company’s title insurance. Such counsel shall state that nothing has come to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument ’s attention that has caused such counsel to ~~which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or~~ believe that each document incorporated by reference ~~as an exhibit to~~ in the Registration Statement~~; or (C) violate any statute~~, ~~ordinance~~the Pricing Disclosure Package and the Prospectus, ~~order~~when filed, ~~rule~~was not, ~~decree or regulation of any court~~on its face, ~~regulatory or governmental body~~appropriately responsive, ~~arbitrator~~in all material respects, ~~administrative agency or other instrumentality~~ to the requirements of the ~~United States having jurisdiction over~~ 1934 Act and the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the 1934 Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amendedRegulations. Such counsel shall also state that ~~they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their~~ nothing has come to such counsel’s attention that has caused such counsel ~~during which the content of~~ to believe that (i) the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness as of the ~~statements contained or incorporated by reference into~~ effective date with respect to the ~~Registration Statement or the Prospectus, on the basis~~ Underwriters pursuant to Rule 430B(f)(2) of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date1933 Act Regulations, contained any untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package at the Applicable Time contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) that the ~~Prospectus,~~ Prospectus or any amendment or supplement ~~thereto including any document incorporated by reference therein~~thereto, as of ~~its issue date and as of~~ their respective dates, or at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not ~~misleading (~~misleading. Such counsel may also state that, except as otherwise expressly provided ~~that~~ in such opinion, such counsel ~~need express no belief regarding~~ does not assume any responsibility for the ~~financial~~ accuracy, completeness or fairness of the statements ~~and related schedules and other financial or statistical data~~ contained in or incorporated by reference into the Registration Statement, the Pricing Disclosure Package or the Prospectus and does not express any ~~amendment thereto including any document~~ opinion or belief as to (i) the financial statements or other financial data contained or incorporated by reference therein, or including XBRL interactive data, (ii) the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention statement of the ~~attorneys~~ eligibility and qualification of the Trustee included in ~~such firm who have been involved in the preparation or review of~~ the Registration Statement (the “Form T-1”) or (iii) the information in the Prospectus under the caption “Book-Entry System.” In rendering the foregoing opinion, such counsel may state that ~~would give them actual current knowledge~~ such counsel does not express any opinion concerning any law other than the law of the ~~existence or absence~~ State of ~~such matter in question. In rendering such opinion, counsel for the Company may rely~~North Carolina or, to the extent ~~counsel deems such reliance proper~~set forth in the foregoing opinions, the federal securities laws and the law of the State of South Carolina, and may rely as to all matters of ~~fact upon certificates~~ the law of the State of South Carolina on the opinion of ▇▇▇▇▇ ▇. ▇▇▇▇, Esq., Associate General Counsel of Duke Energy Business Services, LLC, the service company subsidiary of Duke Energy Corporation (who in such capacity provides legal services to the Company) (or other appropriate counsel reasonably satisfactory to the Representatives, which may include the Corporation’s other “in-house” counsel). Such counsel may also state that such counsel has relied as to certain factual matters on information obtained from public officials, officers of the Company and ~~any governmental officials, and copies of all~~ other sources believed by such ~~certificates shall~~ counsel to be ~~furnished to the Representatives and for the Underwriters on or before each Closing Date~~responsible. (ef) ~~The Representatives~~ You shall have received an opinion of ~~Michael Best~~ Hunton & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ~~▇▇▇ ▇▇ief Financial Officer~~LLP, ~~and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of~~ counsel to the Company, ~~in their respective capacities as such~~dated the Closing Date, to the effect that: (i) The ~~representations and warranties~~ statements (i) under the caption “Description of the ~~Company set forth~~ First and Refunding Mortgage Bonds” in ~~Section 2 hereof are true~~ the Base Prospectus and ~~correct as~~ (ii) under the caption “Description of the ~~date~~ Mortgage Bonds” in the Pricing Disclosure Package and the Prospectus, insofar as such statements purport to summarize certain provisions of the Mortgage and the Bonds, fairly summarize such provisions in all material respects. (ii) No Governmental Approval, which has not been obtained or taken and is not in full force and effect, is required to authorize, or is required for, the execution or delivery of this Agreement by the Company or the consummation by the Company of the transactions contemplated hereby. (iii) The Company is not and, solely after giving effect to the offering and sale of the Bonds and the application of the proceeds thereof as described in the Prospectus, will not be subject to registration and regulation as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended. (iv) The execution and delivery by the Company of this Agreement and as the consummation by the Company of the ~~date~~ transactions contemplated thereby, including the issuance and sale of ~~such certificate~~the Bonds, will not violate or conflict with, or result in any contravention of, any Applicable Laws of the States of North Carolina and New York. (v) The statements in the Pricing Disclosure Package and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed caption “Underwriting,” insofar as such statements purport to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set fosummarize certain provisions

Appears in 1 contract

Sources: Underwriting Agreement (Duke Energy Carolinas, LLC)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Securities on the Initial Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company herein ~~set forth~~ as of the date hereof and as of ~~each~~ the Initial Closing ~~Date, to~~ Date with the ~~accuracy~~ same force and effect as if made as of ~~the statements of the Company's officers made pursuant to the provisions hereof~~that date, to the performance ~~in all material respects~~ by the Company of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) ~~The Registration Statement~~ If the Effective Time is not prior to the execution and delivery of this Agreement, the Effective Time shall have ~~been declared effective by the Commission~~ occurred not later than ~~5:30 p.m.~~5:00 P.M., ~~Washington, D.C.~~ New York time, on the date of this Agreement, or such later time ~~and~~ or date as shall have been consented to by the ~~Representatives~~Underwriter. If the Effective Time is prior to the execution and delivery of this Agreement, ~~which consent shall be deemed to have been given if~~ the ~~Registration Statement~~ Company shall have ~~been declared effective on or before~~ filed the ~~date and time requested in~~ Prospectus with the ~~acceleration request submitted on behalf of the Representatives~~ Commission pursuant to Rule ~~461 under the Act; all filings required by Rules~~ 424(b) within the applicable time period prescribed for such filing by the Rules and ~~430A under~~ Regulations and in accordance with Section 5(a) hereof. In either case, prior to the ~~Act shall have been timely made;~~ Initial Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission~~ and no proceedings for that purpose shall have been instituted or ~~any state securities commission nor~~threatened, or to the knowledge of the ~~Company~~Company or the Underwriters, shall ~~any proceedings for that purpose have been instituted or threatened~~be contemplated by the Commission; and ~~any request~~ the Company shall have complied with all requests for additional information on the part of the Commission ~~or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with~~ to ~~the~~ your reasonable ~~satisfaction of the Representatives acting in good faith~~satisfaction. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus. (c) The ~~Representatives~~ Underwriters shall not have advised the Company that the Registration Statement or ~~Prospectus~~ Prospectus, or any amendment or supplement thereto, contains an any untrue statement of fact ~~that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material~~ or omits to state a any fact ~~that~~which, ~~in the reasonable and good faith opinion of the Representatives or such counsel~~you concluded, is material and in the case of an omission is required to be stated therein or is necessary to make the statements therein not misleading. (dc) The ~~Representatives~~ Underwriters shall have received ~~opinions~~ a favorable opinion of ~~Foley & Lardner, special couns▇▇~~ Calf▇▇r , ▇▇lter & Gris▇▇▇▇, ▇▇unsel for the ~~Company (as to the matters set forth below in subsections (i)~~Company, (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the ~~First Closing Date or the Second~~ Closing Date~~, as the case may be~~, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of ~~Delaware,~~ the State of Ohio with ~~full corporate~~ power and authority to own, lease and operate its properties and conduct its business as ~~presently conducted and as~~ described in the ~~Prospectus~~ Registration Statement and the ~~Registration Statement;~~Prospectus; and the Company is duly qualified to transact business and is in good standing in each jurisdiction in which it owns or leases real property. (ii) ~~The authorized capital stock~~ Each of the subsidiaries of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have has been duly ~~authorized~~ incorporated and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing ~~or active status~~ under the laws of ~~Tennessee~~the jurisdiction of its incorporation, ~~with full corporate~~ has power and authority to own, lease and operate its properties and to conduct its business as ~~presently conducted and as~~ described in the ~~Prospectus~~ Registration Statement and the ~~Registration Statement~~Prospectus, and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which it owns or leases real property; ~~to such counsel's knowledge, the Company owns directly or indirectly and beneficially~~ all of the issued and outstanding capital stock of each subsidiary has been duly authorized and validly issued and is fully paid and non-assessable, and all of such capital stock is owned by the ~~Significant Subsidiary;~~Company free and clear of any pledge, lien, encumbrance, adverse claim or equity. (viii) ~~The certificates for the Shares to be~~ This Agreement has been duly authorized, executed and delivered ~~hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned~~ by the Company~~'s transfer agent~~. (iv) The Company has an authorized capitalization as set forth in the Prospectus, and ~~delivered~~ the shares of capital stock of the Company outstanding prior to the ~~Representatives or upon the order~~ issuance of the ~~Representatives against payment of~~ Securities to be sold by the ~~agreed consideration therefor in accordance with the provisions of this Agreement~~Company have been duly authorized, ~~the Shares represented thereby will be duly authorized and~~ are validly issued, fully paid and ~~nonassessable~~ non-assessable (~~except~~except that the Subscription Shares will not be fully paid and non-assessable until payment for such Subscription Shares is received as provided in the Subscription Trust), and conform to the ~~extent applicable~~description thereof contained in the Prospectus. (v) The Securities to be sold by the Company have been duly authorized and validly issued and are fully paid and non-assessable, ~~as otherwise provided in Section 180.0622(2)(b)~~ and the issuance and sale of all the ~~Wisconsin Business Corporation Law~~Securities is not subject to pre-emptive or other similar rights or to restrictions on transfer (other than those imposed by the Act, ~~as judicially interpreted~~the Rules and Regulations or state securities or Blue Sky laws);. (vi) The Registration Statement ~~has become~~ is effective under the Act and, to ~~such counsel's knowledge~~the best of their knowledge and information, no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued ~~and no~~ under the Act or proceedings ~~for that purpose have been instituted~~ therefor initiated or threatened or are ~~threatened~~ pending or contemplated by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied;. (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the ~~heading~~ headings "Prospectus Supplement Summary", "Use of Proceeds", "The Company", "Description of Certain Indebtedness", "Description of Debt Securities", and "Description of Capital Stock~~," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994~~", and in the Registration Statement under Item 15 on Form S-3 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to ~~therein,~~ therein fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set fo

Appears in 1 contract

Sources: Underwriting Agreement (Pioneer Standard Electronics Inc)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Offered Debt Securities will be subject to the ~~accuracy~~ accuracy, at and as of the Closing Date, in all material respects, of the representations and warranties on the part of the Company ~~herein set forth as of the date hereof and as of each Closing Date~~herein, to the ~~accuracy~~ accuracy, in all material respects, of the statements of ~~the Company's~~ Company officers made pursuant to the provisions hereof, to the ~~performance~~ performance, in all material ~~respects~~ respects, by the Company of its obligations ~~hereunder,~~ hereunder and to the following additional conditions~~, unless waived in writing by the Representatives~~: (a) ~~The Registration Statement shall have been declared effective by~~ Prior to the ~~Commission not later than 5:30 p.m.~~Closing Date, Washington, D.C. time, on the date of this Agreement, or such later time and date as shall have been consented to by the Representatives, which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the Commission ~~or any state securities commission nor~~or, to the knowledge of the executive officers of the Company, shall ~~any proceedings for that purpose have been instituted or threatened~~be contemplated by the Commission; and ~~any request~~ all requests for additional information on the part of the Commission ~~or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise,~~ shall have been complied with to the reasonable satisfaction of the ~~Representatives acting in good faith~~Representatives. (b) ~~Subsequent to~~ Since the ~~execution~~ respective dates as of ~~this Agreement, (i)~~ which information is given in the Time of Sale Prospectus, there shall not have occurred any material change in or ~~development involving~~affecting the business, properties or ~~which could be reasonably expected to involve~~financial condition of the Company or its material subsidiaries which, ~~a Material Adverse Effect, whether or not arising from transactions~~ in the ~~ordinary course~~ judgment of ~~business~~the Representatives, ~~and~~materially impairs the investment quality of the Offered Debt Securities. (iic) Subsequent to the ~~Company~~ execution and delivery of this Agreement and prior to the Closing Date, there shall not have ~~sustained~~ occurred any ~~loss~~ of the following: (i) a suspension or ~~interference from any labor dispute~~material limitation in trading in securities generally on the New York Stock Exchange, ~~strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect,~~ if the effect of ~~which on the Company, in~~ any such ~~case described in clause (i) or (ii) above~~event, is in the reasonable ~~and good faith opinion~~ judgment of the ~~Representatives so material and adverse as~~ Representatives, is to make it impracticable or inadvisable to ~~proceed with~~ market the ~~public offering or the delivery of the Shares~~ Offered Debt Securities on the terms and in the manner contemplated in the ~~Registration Statement and~~ Time of Sale Prospectus as amended or supplemented or the ~~Prospectus.~~Prospectus as amended or supplemented; (cii) ~~The Representatives shall not have advised~~ a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; (iii) any downgrading in the rating accorded the Company's senior debt securities by any "nationally recognized statistical rating organization", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act; (iv) the suspension in trading in the securities of the Company ~~that~~ on any national securities exchange or quotation system on which they are listed or quoted, if the ~~Registration Statement or Prospectus contains an untrue statement~~ effect of ~~fact that,~~ such event in the reasonable ~~and good faith opinion~~ judgment of the Representatives is to make it impracticable or ~~counsel for~~ inadvisable to market the ~~Underwriters~~Offered Debt Securities on the terms and in the manner contemplated in the Time of Sale Prospectus as amended or supplemented or the Prospectus as amended or supplemented; or (v) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, ~~is material~~ other than any such outbreak, escalation or ~~omits to state~~ declaration that does not represent a ~~fact that~~significant departure from the conditions that exist on the date hereof, if the effect of any such event in the reasonable ~~and good faith opinion~~ judgment of the Representatives ~~or such counsel,~~ is ~~material and is required to be stated therein or necessary~~ to make it impracticable or inadvisable to market the ~~statements therein not misleading~~Offered Debt Securities on the terms and in the manner contemplated in the Time of Sale Prospectus as amended or supplemented or the Prospectus as amended or supplemented. (d) The Representatives shall have received an opinion or opinions of ~~Foley & Lardner~~Jack R. Erkilla, ~~special couns~~Esq., Deputy General Counsel of the Company, or such ot▇▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed ▇▇▇▇▇ ▇▇ shall be acceptable to the Representatives, ~~as the representatives of the Underwriters, and~~ dated the ~~First Closing Date or the Second~~ Closing Date~~, as the case may be~~, to the effect that: (i) The Company is a corporation duly incorporated and validly existing ~~as a corporation in good standing~~ under the laws of ~~Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in~~ the ~~Prospectus and the Registration Statement; (ii) The authorized capital stock~~ State of ~~the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share~~Indiana, and ~~77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of~~ has the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as ~~presently conducted~~ described in the Time of Sale Prospectus and the Prospectus as amended or supplemented and to enter into and perform its obligations under, or as contemplated under, this Agreement; (ii) Each of the subsidiaries of the Company has been duly incorporated and is validly existing as a business corporation or an insurer, as the case may be, and is in good standing under the laws of its jurisdiction of incorporation, with corporate power and authority to own, lease and operate its properties and conduct its business as described in the Time of Sale Prospectus and the Prospectus as amended or supplemented; provided, however, that "good standing" means with respect to any subsidiary incorporated under the laws of the State of Indiana, that such subsidiary has filed its most recent biennial report required by the laws of the State of Indiana and Articles of Dissolution have not been filed in the State of Indiana with respect to such subsidiary; to the knowledge of such counsel, the Company and each of its subsidiaries has been duly qualified as a foreign corporation for the transaction of business or licensed to transact business as an insurance company, as the case may be, and is in good standing under the laws of each other jurisdiction in which it owns or leases substantial properties, or conducts business, and where the failure so to qualify and be in good standing would have a material adverse effect on the business of the Company and its subsidiaries taken as a whole; all of the outstanding shares of capital stock of each such subsidiary have been duly authorized and validly issued, are fully paid and non-assessable, and (except for any directors' qualifying shares) are owned, directly or indirectly, by the Company, free and clear of all liens and encumbrances; and, to the knowledge of such counsel, the Company and each of its subsidiaries has all required authorizations, approvals, orders, licenses, certificates and permits of and from all governmental regulatory officials and bodies (including, without limitation, each insurance regulatory authority having jurisdiction over the Company or any insurance subsidiary of the Company) to own, lease and operate its properties and to conduct its business as described in the Time of Sale Prospectus and the Prospectus as amended or supplemented, except such authorizations, approvals, orders, licenses, certificates and permits which, if not obtained, would not have a material adverse effect on the business of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause (ii) upon opinions (in form and substance satisfactory to the Representatives) of local counsel and of counsel for the subsidiaries, such counsel being acceptable to counsel for the Underwriters, copies of which shall be furnished to the Representatives; and in respect of matters of fact upon certificates of public officials or officers of the Company or its subsidiaries, provided that such counsel shall state that he or she believes that he or she is justified in relying upon such opinions); (iii) There are no legal or governmental proceedings pending or, to the knowledge of such counsel, threatened, of a character that are required to be disclosed in the Registration Statement, the Time of Sale Prospectus or the Prospectus, each as amended or supplemented, other than as disclosed therein; to the knowledge of such counsel, there are no contracts, indentures, mortgages, deeds of trust, loan agreements or other documents of a character required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus, each as amended or supplemented (or required to be filed under the Exchange Act if upon such filing they would be incorporated by reference therein), or to be filed as exhibits to the Registration Statement that are not described and filed as required and all descriptions in the Time of Sale Prospectus and the Prospectus, each as amended or supplemented, of such documents to which the Company or its subsidiaries are a party are accurate in all material respects; (iv) Neither the Company nor any of its subsidiaries is in violation of its articles of incorporation, charter or by-laws or in default in the performance or observance of any contractual obligation known to such counsel~~'s knowledge~~, the violation of or default under which has or will have a material adverse effect on the business of the Company ~~owns directly or indirectly~~ and ~~beneficially~~ its subsidiaries taken as a whole. The issue and sale of the Offered Debt Securities, the compliance by the Company with all of the ~~issued and outstanding capital stock~~ provisions of the ~~Significant Subsidiary~~Offered Debt Securities, the Indenture, each of the Delayed Delivery Contracts, if any, and this Agreement, and the consummation of the transactions herein and therein contemplated will not (A) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any contract, indenture, mortgage, deed of trust, loan agreement or other agreement or instrument for money borrowed to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, or (B) result in any violation of (x) the provisions of the Restated Articles of Incorporation, as amended, or the Amended and Restated By-Laws of the Company or (y) any statute, order, rule, regulation, judgement, writ or decree 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, in any manner which, in the case of clauses (A) and (B)(y), would have a material adverse effect on the business of the Company and its subsidiaries taken as a whole (such counsel being entitled to rely in respect of the opinion in this clause (iv) with respect to subsidiaries upon opinions (in form and substance satisfactory to the Representatives) of counsel for the subsidiaries, such counsel being acceptable to counsel for the Underwriters, copies of which shall be furnished to the Representatives, provided that such counsel shall state that he or she believes that he or she is justified in relying upon such opinions); (v) ~~The certificates~~ No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties is required for the ~~Shares~~ issue and sale of the Offered Debt Securities or the consummation by the Company of the other transactions contemplated by this Agreement, the Indenture, or any Delayed Delivery Contract, except such as may be required 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" or insurance laws in connection with the public offering of the Offered Debt Securities by the Underwriters; (vi) This Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company; (vii) The Indenture has been duly authorized, executed and delivered by the Company and (assuming the Indenture has been duly authorized, executed and delivered by the Trustee) constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws of general applicability relating to or affecting creditors' rights and to general equity principles; (viii) The Offered Debt Securities have been duly authorized and, when executed and authenticated pursuant to the Indenture and issued and delivered against payment therefor pursuant to this Agreement (or, in the case of any Contract Offered Debt Securities, pursuant to the Delayed Delivery Contracts with respect thereto), (A) the Offered Debt Securities will be duly executed, authenticated, issued and delivered ~~hereunder~~ and will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws of general applicability relating to or affecting creditors' rights and to general equity principles, are in the form authorized in or pursuant to the Indenture, and conform in all material respects to the ~~requirements~~ description thereof in the Time of Sale Prospectus and the Prospectus as amended or supplemented and (B) each holder of Offered Debt Securities will be entitled to the benefits of the ~~Delaware General Corporation Law~~ Indenture; (ix) The information in the Time of Sale Prospectus and the ~~rules and regulations~~ Prospectus as amended or supplemented under the captions "Description of ~~the New York Stock Exchange; and when duly countersigned by the Company's transfer agent~~Debt Securities", "Certain United States Federal Income Tax Considerations", and ~~delivered~~ "Description of Offered Debt Securities", or any caption purporting to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (exceptcover such matters, to the extent ~~applicable~~that such information constitutes matters of law, ~~as otherwise provided~~ summaries of legal matters, or legal conclusions, has been reviewed by such counsel and is correct in ~~Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted)~~all material respects; (vix) The Indenture is qualified under the Trust Indenture Act; (xi) The Registration Statement ~~has become~~ is effective under the Securities Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no ~~proceedings~~ proceeding for that purpose ~~have~~ has been ~~instituted~~ initiated or ~~are~~ threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) ~~The Shares are authorized for trading~~ Each part of the Registration Statement (other than the financial statements and supporting schedules included therein and the Statement of Eligibility under the Trust Indenture Act filed as an exhibit thereto, as to which no opinion need be expressed), at the time it became effective, appeared on its face to be appropriately responsive in all material respects to the ~~New York Stock Exchange~~applicable requirements of the Securities Act, the Trust Indenture Act and the respective rules and regulations of the Commission thereunder; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not, and after giving effect to the issue and sale of the Offered Debt Securities, will not be, an "investment company," as such term is defined in the Investment Company Act of 1940, as amended~~. Such counsel shall also state that~~ ; (xiv) The documents incorporated by reference in the Prospectus as amended or supplemented (other than the financial statements and supporting schedules included therein, as to which no opinion need be expressed), when they ~~have participated~~ were filed with the Commission, complied as to form in ~~conferences~~ all material respects with ~~officers and other representatives~~ the requirements of the ~~Company, representatives of auditors for~~ Exchange Act and the ~~Company~~ rules and ~~representatives of the Underwriters and their~~ regulations thereunder; and (xv) Nothing has come to such counsel's attention that would lead such counsel ~~during which the content~~ to believe that (A) any part of the Registration Statement (other than the financial statements and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements supporting schedules contained or incorporated by reference ~~into~~ therein or omitted therefrom and the Statement of Eligibility under the Trust Indenture Act filed as an exhibit thereto, as to which such counsel need not comment), when such part became effective or is deemed to have become effective, and if an amendment to the Registration Statement under the Securities Act or an Annual Report on Form 10-K under the ~~Prospectus, on~~ Exchange Act has been filed by the ~~basis~~ Company with the Commission subsequent to the effectiveness of the ~~information that~~ Initial Registration Statement, then at 11 the time each such amendment became effective and the most recent such Form 10-K was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective datefiled, contained ~~any~~ an untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, (B) the Time of Sale Prospectus as of the Applicable Time or ~~that~~ the ~~Prospectus,~~ Prospectus as of its date (other than the financial statements and supporting schedules included or ~~any amendment or supplement thereto including any document~~ incorporated by reference ~~therein~~therein or omitted therefrom, as ~~of its issue date and as of the Closing Date, contained or contains any~~ to which such counsel need not comment) included an untrue statement of a material fact or omitted ~~or omits~~ to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (~~provided that such counsel need express no belief regarding~~ C) the Time of Sale Prospectus or the Prospectus (other than the financial statements and ~~related~~ supporting schedules ~~and other financial~~ included or ~~statistical data contained in the Registration Statement, any amendment thereto including any document~~ incorporated by reference ~~therein,~~ therein or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance properomitted therefrom, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to which such counsel ~~such documents and shall have exhibited to them such papers and records~~ need not comment), each as ~~such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date~~amended or supplemented, ~~a certificate of Kenneth W. Krueger~~if applicable, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued Closing Date includes an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set fo

Appears in 1 contract

Sources: Underwriting Agreement (American General Finance Corp)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company and the Participating Stockholders herein ~~set forth as of~~ on the date hereof and ~~as of~~ on the First Closing Date and each Optional Closing Date, to the accuracy of the statements of ~~the Company's~~ Company officers made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company and the Participating Stockholders of ~~its~~ their obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The Representative shall have received a letter, dated as of the date of this Agreement, of Ernst & Young LLP, substantially in the form attached hereto as Exhibit A, concerning the financial information with respect to TD Group and its subsidiaries set forth in the General Disclosure Package. (b) The Representative shall have also received a letter, dated as of the date of this Agreement, of KPMG LLP, substantially in the form attached hereto as Exhibit B, concerning the financial information with respect to Aviation Technologies, Inc. (“ATI”) and its subsidiaries set forth in the General Disclosure Package. (c) The Representative shall have received a certificate, dated the date hereof, of the of ATI (or the Chief Financial Officer of the Company) substantially in the form attached hereto as Exhibit C. (d) If the Effective Time of the Additional Registration Statement (if any) is not prior to the execution and delivery of this Agreement, such Effective Time shall have ~~been declared effective by the Commission~~ occurred not later than ~~5:30~~ 10:00 p.m., ~~Washington, D.C.~~ New York time, on the date of this ~~Agreement~~Agreement or, if earlier, the time the Prospectus is finalized and distributed to any Underwriter, or shall have occurred at such later time ~~and date~~ as shall have been consented to by ~~the Representatives, which consent shall be deemed to have been given if the Registration Statement~~ CSS. The Prospectus shall have been ~~declared effective on or before~~ filed with the ~~date~~ Commission in accordance with the Rules and ~~time requested in the acceleration request submitted on behalf of the Representatives pursuant~~ Regulations and Section 5(a)(i) hereof. Prior to ~~Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made;~~ such Closing Date, no stop order suspending the effectiveness of ~~the~~ a Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Participating Stockholders, the Company or the Representative, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (be) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) any change, or any development or event involving a prospective change, in the condition (~~ii) above~~financial or other), business, properties or results of operations of the Company and its subsidiaries taken as one enterprise which, in the judgment of a majority in interest of the Underwriters, including the Representative, is ~~in the reasonable and good faith opinion of the Representatives so~~ material and adverse ~~as to make~~ and makes it ~~impracticable~~ impractical or inadvisable to proceed with completion of the public offering or the ~~delivery~~ sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities of the ~~Shares on~~ Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the ~~terms and in the manner contemplated in the Registration Statement and the Prospectus. (c) The Representatives shall not have advised~~ Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company ~~that the Registration Statement~~ (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any change in U.S. or ~~Prospectus contains an untrue statement of fact that~~international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable ~~and good faith opinion~~ judgment of ~~the Representatives or counsel for~~ a majority in interest of the Underwriters, is including the Representative, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or ~~omits to state a fact that~~material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States or (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the reasonable ~~and good faith opinion~~ judgment of a majority in interest of the ~~Representatives~~ Underwriters, including the Representative, the effect of any such attack, outbreak, escalation, act, declaration, calamity or ~~such counsel, is material~~ emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and ~~is required to be stated therein or necessary to make~~ payment for the ~~statements therein not misleading~~Offered Securities. (df) The ~~Representatives~~ Representative shall have received ~~opinions~~ opinions, dated such Closing Date, of ~~Foley & Lardner, special couns~~▇▇▇▇▇▇▇ ▇▇~~r the Company (as~~ ▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP or other local counsel to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the RepresentativesCompany, as ~~the representatives of the Underwriters~~applicable, ~~and dated the First Closing Date or the Second Closing Date, as the case may be,~~ substantially to the effect that: (i) The Company has been duly incorporated and is ~~validly~~ an existing ~~as a~~ corporation in good standing under the laws of the State of Delaware, with ~~full~~ corporate power and authority to ~~own, lease and operate~~ own its properties and conduct its business as ~~presently conducted and as~~ described in the ~~Prospectus~~ Prospectus, except where the failure to have such power and authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and the ~~Registration Statement~~Company is duly qualified to do business as a foreign corporation in good standing in the jurisdictions, if any, listed on a schedule to such opinion; (ii) ~~The~~ Each subsidiary of the Company listed on Schedule G hereto has been duly incorporated and is an existing corporation in good standing under the laws of the jurisdiction of its incorporation, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus, except where the failure to have such power and authority would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and each such subsidiary of the Company is duly qualified to do business as a foreign corporation in good standing in the jurisdictions listed on a schedule to such opinion; all of the issued and outstanding capital stock of each such subsidiary of the Company has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock of each such subsidiary owned by the Company, directly or through subsidiaries, is, to the knowledge of such counsel, owned free from liens, defects and encumbrances, except for liens, defects and encumbrances on the capital stock of the subsidiaries (direct and indirect) of the Company ~~consists~~ granted in favor of ~~60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share~~the lenders under or related to the Credit Agreement; (iii) The ~~issued~~ Offered Securities and all other outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been ~~issued in violation of such rights; (iv) The Significant Subsidiary is~~ duly authorized and are, or on or prior to each Closing Date will be, validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and ~~outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder~~ fully paid and nonassessable and conform in all material respects to the ~~requirements~~ description thereof contained in the General Disclosure Package, and the stockholders of the ~~Delaware General Corporation Law and~~ Company have no preemptive rights with respect to the ~~rules and regulations~~ Securities; (iv) No consent, approval, authorization, or order of, or filing with, any governmental agency or body or any court is required to be obtained or made by the Company for the consummation of the ~~New York Stock Exchange;~~ transactions contemplated by this Agreement in connection with the sale of the Offered Securities, except such as have been obtained and ~~when duly countersigned~~ made under the Act and such consents, approvals, authorizations, orders or filings as have been obtained or may be required under state securities or blue sky laws or where the failure to obtain or make any of the foregoing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; (v) The execution, delivery and performance of this Agreement by the Company~~'s transfer agent~~, the consummation of the transactions herein contemplated and the sale of the Offered Securities by the Participating Stockholders will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (1) any federal or New York statute, rule, regulation or order known to such counsel to be customarily applicable to transactions of the type contemplated by this Agreement or, to such counsel’s knowledge, any order, judgment or decree specifically naming the Company or any of its subsidiaries of any governmental agency or body having jurisdiction over the Company or any such subsidiary or any of their properties, (2) any agreement or instrument to which the Company or any such subsidiary is a party or by which the Company or any such subsidiary is bound or to which any of the properties of the Company or any such subsidiary is subject and which is listed on Schedule H hereto or (3) the charter or by-laws of the Company or any such subsidiary, except in the case of clauses (1) and (2), for breaches, violations and defaults that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and ~~delivered~~ the Company has the corporate power and authority to enter into this Agreement and to consummate the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted)transactions contemplated hereby; (vi) The Initial Registration Statement ~~has become~~ was declared effective under the Act as of the date and time specified in such opinion, the Additional Registration Statement (if any) was filed and became effective under the Act as of the date and time (if determinable) specified in such opinion, the Prospectus either was filed with the Commission pursuant to the subparagraph of Rule 424(b) specified in such opinion on the date specified therein or was included in the Initial Registration Statement or the Additional Registration Statement (as the case may be), and, to the best of the knowledge of such counsel~~'s knowledge~~, no stop order suspending the effectiveness of ~~the~~ a Registration Statement or any part thereof has been issued and no proceedings for that purpose have been instituted or are ~~threatened by~~ pending or contemplated under the ~~Commission; the~~ Act, and each Registration Statement and the ~~Prospectus~~ Prospectus, and ~~any~~ each amendment or supplement thereto, ~~including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical~~ as of their respective effective or ~~financial data included therein~~issue dates, ~~as to which such counsel need express no opinion) comply~~ complied as to form in all material respects with the requirements of the ~~Act;~~ Act and the ~~conditions for use~~ Rules and Regulations, and such counsel do not know of ~~Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened~~ any legal or governmental proceedings ~~that are~~ required to be described in ~~the~~ a Registration Statement or the Prospectus ~~that~~ which are not ~~so described, nor, to such counsel's knowledge, is there~~ described as required or of any ~~transaction, relationship, agreement, contract~~ contracts or ~~other document~~ documents of a character required to be described in ~~the~~ a Registration Statement or the ~~Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed~~ Prospectus which are not described as ~~an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference~~ required;; and (~~viii~~vii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this This Agreement has been duly authorized, executed and delivered by ~~and on behalf of~~ the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD);. (xg) ~~The execution~~In addition, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have it has no reason to believe that ~~the~~ any part of a Registration Statement ~~including~~ or any ~~document incorporated by reference therein~~amendment thereto, on as of its effective ~~date~~date or as of such Closing Date, contained any untrue statement of a material fact or omitted ~~or omits~~ to state any material fact required to be stated therein or necessary to make the statements therein not ~~misleading,~~ misleading or that the ~~Prospectus,~~ Prospectus or any amendment or supplement ~~thereto including any document incorporated by reference therein~~thereto, as of its issue date ~~and~~ or as of ~~the~~ such Closing Date, contained ~~or contains~~ any untrue statement of a material fact or omitted ~~or omits~~ to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading (provided~~ misleading; such counsel have no reason to believe that the documents constituting the General Disclosure Package, as of the Applicable Time and as of such Closing Date, when considered together, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. It is understood and agreed that such counsel need express no ~~belief regarding~~ opinion as to the financial ~~statements and~~ statements, related schedules and other financial ~~or statistical data~~ and accounting information contained in the Registration ~~Statement, any amendment thereto including any document incorporated by reference therein,~~ Statements or the Prospectus. (h) The Representative shall have received an opinion, dated each applicable Closing Date, of counsel for each of the Participating Stockholders whose names are set forth on Schedule I hereto (provided that such Participating Stockholder is selling Securities to the Underwriters hereunder on such Closing Date), substantially to the effect that: (i) Upon the Underwriters’ acquiring possession of stock certificates representing the Securities to be sold by such Participating Stockholder endorsed to the Underwriters and paying the purchase price therefor pursuant to this Agreement, the Underwriters (assuming that no such Underwriter has notice of any adverse claim (within the meaning of Section 8-105 of the Uniform Commercial Code) to such Securities) will acquire such Participating Stockholder’s interest in such Securities (including, without limitation, all rights that such Participating Stockholder had or has the power to transfer in such Securities) free and clear of any adverse claim (within the meaning of Section 8-102 of the Uniform Commercial Code); (ii) No consent, approval, authorization or order of, or filing with, any ~~amendment~~ governmental agency or ~~supplement thereto including~~ body or any ~~document incorporated~~ court is required to be obtained or made by ~~reference therein). To~~ such Participating Stockholder for the ~~extent that~~ consummation of the transactions contemplated by the applicable Custody Agreement and this Agreement in connection with the sale of the Offered Securities by such Participating Stockholder, except such as have been obtained and made under the Act and such as may be required under state securities or blue sky laws; (iii) The execution, delivery and performance of the applicable Custody Agreement and this Agreement and the consummation of the transactions therein and herein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (A) any statute, rule or regulation known to such ~~opinions are stated~~ counsel to be ~~based upon such counsel's knowledge~~ customarily applicable to transactions of the type contemplated by this Agreement or ~~to be given "~~(B) to the knowledge of such Participating Stockholder’s counsel," , any order of any governmental agency or body or any court having jurisdiction over such ~~qualification shall signify that no information has come~~ Participating Stockholder or any of its properties; (iv) The Power of Attorney and related Custody Agreement with respect to ~~the attention of the attorneys in~~ such ~~firm who~~ Participating Stockholder have been ~~involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence~~ duly authorized, executed and delivered by such Participating Stockholder and constitute valid and legally binding obligations of such ~~matter~~ Participating Stockholder enforceable in ~~question. In rendering~~ accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and (v) This Agreement has been duly authorized, executed and delivered by or on behalf of such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing DateParticipating Stockholder. (ei) The ~~Representatives~~ Representative shall have received ~~an opinion of Michael Best~~ from Cravath, Swaine & ~~Friedrich LLP, ▇▇~~▇▇▇▇▇ ~~▇▇▇~~ LLP, counsel for the ~~▇▇▇▇▇▇▇▇ters~~Underwriters, such opinion or opinions, dated ~~the First Closing Date or the Second~~ such Closing Date~~, as the case may be~~, with respect to the ~~sale~~ incorporation of the ~~Shares hereunder~~Company, the validity of the Offered Securities delivered on such Closing Date, the Registration ~~Statement~~ Statements, the Prospectus and other related matters as the ~~Representatives~~ Representative may reasonably require, and the Participating Stockholders and the Company shall have furnished to such counsel such documents ~~and shall have exhibited to them such papers and records~~ as ~~such counsel~~ they reasonably request for the purpose of enabling them to pass upon such matters. (fj) The ~~Representatives~~ Representative shall have received ~~on each~~ a certificate, dated such Closing Date, ~~a certificate~~ of ~~Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial~~ the Chief Executive Officer, the President or any Vice President and ~~W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary,~~ a principal financial or accounting officer of the ~~Company,~~ Company in ~~their respective capacities as such~~which such officers, to the ~~effect~~ best of their knowledge after reasonable investigation, shall state that~~: (i) The~~ : the representations and warranties of the Company ~~set forth~~ in ~~Section 2 hereof~~ this Agreement are true and ~~correct as of the date of this Agreement and as of the date of such certificate, and~~ correct; the Company has complied ~~in all material respects~~ with all ~~the~~ agreements and satisfied all ~~the~~ conditions on its part to be performed or satisfied ~~by it~~ hereunder at or prior to ~~the date of~~ such ~~certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto~~Closing Date; no stop order suspending the effectiveness of ~~the~~ any Registration Statement has been ~~issued;~~ issued and ~~to the knowledge of the respective signatories,~~ no proceedings for that purpose have been ~~initiated~~ instituted or are ~~pending under~~ contemplated by the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set foCo

Appears in 1 contract

Sources: Underwriting Agreement (TransDigm Group INC)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement~~ to purchase and pay for the Firm Shares on the First Closing Date and the Option Shares on the Second Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company and each of the Selling Stockholders herein set forth as of the date hereof and as of ~~each~~ the First Closing Date or the Second Closing Date, as the case may be, to the accuracy of the statements of officers of the ~~Company's officers~~ Company made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company and each of ~~its~~ the Selling Stockholders of their respective obligations hereunder, and to the following additional conditions~~, unless waived in writing by the Representatives~~: (a) The Registration Statement shall have been declared effective by the Commission not later than 5:30 p.m., Washington, D.C. time, on the date of this Agreement, or such later time and date as shall have been consented to by the Representatives, which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; no No stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission~~ and no proceedings for that purpose shall have been instituted or ~~any state securities commission nor~~shall be pending or, to the knowledge of the Company, the Selling Stockholders or you, shall ~~any proceedings for that purpose have been instituted or threatened; and any request~~ be contemplated by the Commission. If the Company has elected to rely upon Rule 430B, the information concerning the public offering price of the ~~Commission or any state securities commission for inclusion of additional~~ Shares and price-related information, and such other information omitted from the Base Prospectus in ~~the Registration Statement, or otherwise~~reliance on Rule 430B, shall have been ~~complied with~~ transmitted to the ~~reasonable satisfaction of~~ Commission for filing pursuant to Rule 424(b) in the manner and within the prescribed time period (without reliance on Rule 424(b)(8)) and the Company will provide evidence satisfactory to the Representatives ~~acting~~ of such timely filing (or a post-effective amendment providing such information shall have been filed and declared effective in ~~good faith~~accordance with the requirements of Rules 430B and 424(b)). If a Rule 462(b) Registration Statement is required, such Registration Statement shall have been transmitted to the Commission for filing and become effective within the prescribed time period and, prior to the First Closing Date, the Company shall have provided evidence of such filing and effectiveness in accordance with Rule 462(b). (b) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred any ~~change or development involving~~material adverse change, or ~~which could be reasonably expected to involve~~any development involving a prospective material adverse change, in or affecting particularly the business or properties of the Company and its Subsidiaries, taken as a ~~Material Adverse Effect~~whole, whether or not arising ~~from transactions~~ in the ordinary course of business, ~~and (ii)~~ from that set forth in the ~~Company shall not have sustained any loss or interference from any labor dispute~~Disclosure Package and the Prospectus, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Companywhich, in ~~any such case described in clause (i) or (ii) above, is in~~ the ~~reasonable and good faith opinion~~ sole judgment of the ~~Representatives so material and adverse as to make~~ Representatives, makes it ~~impracticable~~ impractical or inadvisable to proceed with the public ~~offering~~ offering, sale or ~~the~~ delivery of the Shares ~~on the terms and in the manner~~ as contemplated ~~in the Registration Statement and the Prospectus~~hereby. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives There shall have ~~received opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company (as~~ been furnished to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representativesyou, as ~~the representatives~~ Representatives of the Underwriters, on the First Closing Date or the Second Closing Date, as the case may be, except as otherwise expressly provided below: (i) An opinion and negative assurance letter of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Company, each addressed to the Underwriters and dated the First Closing Date or the Second Closing Date, as the case may be, each in form and substance reasonably satisfactory to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement;Underwriters. (ii) ~~The authorized capital stock~~ An opinion of counsel for each of the ~~Company consists of 60,000,000 shares of Common Stock~~Selling Stockholders, ~~par value $1.00 per share~~in each case addressed to the Underwriters and dated the First Closing Date or the Second Closing Date, ~~14,000,000 shares of Class A common stock~~as the case may be, ~~par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share;~~in substantially the form set forth on Exhibit B hereto. (iii) ~~The issued and outstanding shares~~ Such opinion or opinions of ~~capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued~~Skadden, ~~are fully paid and nonassessable (except~~Arps, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLPSlate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the ~~▇▇▇▇▇▇▇▇ters~~Underwriters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the ~~sale~~ existence of the ~~Shares hereunder~~Company, the validity of the Shares, the Registration ~~Statement~~ Statement, the Disclosure Package and the Prospectus and other related matters as ~~the Representatives~~ you may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as ~~such counsel~~ they may reasonably request for the purpose of enabling them to pass upon such matters. (fiv) ~~The Representatives shall have received on each Closing Date, a~~ A certificate of ~~Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer,~~ the chief executive officer and ~~W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary,~~ the principal financial officer of the Company, ~~in their respective capacities~~ dated the First Closing Date or the Second Closing Date, as ~~such~~the case may be, to the effect that: (i1) ~~The~~ the representations and warranties of the Company set forth in Section 2 ~~hereof~~ of this Agreement are true and correct as of the date of this Agreement and as of the ~~date of such certificate~~First Closing Date or the Second Closing Date, as the case may be, and the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~by it~~ at or prior to ~~the date of~~ such ~~certificate~~Closing Date; (ii2) ~~The~~ the Commission has not issued an order preventing or suspending the use of the Prospectus or any ~~Preliminary Prospectus~~ preliminary prospectus filed as a part of the Registration Statement or any amendment ~~or supplement~~ thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the best knowledge of the respective ~~signatories~~signers, no proceedings for that purpose have been ~~initiated~~ instituted or are pending or contemplated under the ~~Act or under the Blue Sky Laws of any jurisdiction;~~1933 Act; and (~~iii~~3) ~~Each~~ subsequent to the date of the ~~respective signatories has examined~~ most recent financial statements included in the Registration Statement and ~~the Prospectus~~Prospectuses, and except as set forth or contemplated in the Prospectuses, there has not been any ~~amendment~~ change that has had or ~~supplement thereto~~would reasonably be expected to have a material adverse effect upon the Company or any material change in its capital stock or short-term debt or long-term debt. The delivery of the certificate provided for in this subparagraph shall be and constitute a representation and warranty of the Company as to the facts required in the immediately foregoing clauses (1), ~~including any documents filed under the Exchange Act~~ (2) and ~~deemed~~ (3) to be set forth in said certificate. (v) A certificate of from each of the Selling Stockholders (as identified in Schedule B hereto), dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that the representations and warranties of such Selling Stockholder set forth in Section 3 are true and correct as of such date and such Selling Stockholder has complied with all the agreements and satisfied all the conditions on the part of such Selling Stockholder to be performed or satisfied at or prior to such date. (vi) On the date of the Prospectus and promptly following the execution of this Agreement, and also on the First Closing Date or the Second Closing Date, as the case may be, there shall have been delivered to you a letter addressed to you, as Representatives of the Underwriters, from Ernst & Young LLP, an independent registered public accountant firm, the first one to be dated the date of this Agreement, the second one to be dated the First Closing Date and the third one (in the event of a second closing) to be dated the Second Closing Date, in form and substance reasonably satisfactory to the Underwriters, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the ~~Registration Statement~~Prospectus. There shall not have been any material change or decrease specified in the letters referred to in this subparagraph which makes it impractical or inadvisable in the judgment of the Representatives to proceed with the public offering or purchase of the Shares as contemplated hereby. (vii) A certificate of the chief executive officer and the principal financial officer of the Company, dated the First Closing Date or the Second Closing Date, as the case may be, verifying the truth and accuracy of such statistical or financial figures included in the Prospectus which you may reasonably request and which have not been otherwise verified by the letters referred to in clause (vi) above, such verification to include the provision of documentary evidence supporting any such statistical or financial figure. (viii) The “lock-up” letter agreements between you and the Option Stockholder and the named executive officers and directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to you on or before the date hereof, shall be in full force and effect on the First Closing Date or the Second Closing Date, as the case may be. (ix) Such further certificates and documents ~~contain all statements~~ as you may reasonably request. All such opinions, certificates, letters and documents shall be in compliance with the provisions hereof only if they are reasonably satisfactory to you and to Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, which approval shall not be unreasonably withheld. The Company shall furnish you with such manually signed or conformed copies of ~~material fact required~~ such opinions, certificates, letters and documents as you request. If any condition to the Underwriters’ obligations hereunder to be ~~stated therein~~satisfied prior to or at the First Closing Date is not so satisfied, this Agreement at your election will terminate upon notification to the Company and ~~do not include~~ the Selling Stockholders without liability on the part of any ~~untrue statement of a material fact~~ Underwriter or ~~omit to state any material fact required~~ the Company or the Selling Stockholders, except for the expenses to be ~~stated therein~~ paid or ~~necessary~~ reimbursed by the Company pursuant to ~~make the statements therein not misleading,~~ Sections 8 and ~~since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment~~ 10 hereof and except to the ~~Registration Statement that has not been so set fo~~extent provided in Section 12 hereof.

Appears in 1 contract

Sources: Underwriting Agreement (Ulta Salon, Cosmetics & Fragrance, Inc.)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of~~ Seller and the ~~date hereof and as of each Closing Date~~Servicer herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Seller and the Servicer made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Seller and the Servicer of ~~its~~ their respective obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) ~~The~~ At the time this Agreement is executed and delivered by the Seller and at the Closing Date, Deloitte & Touche LLP shall have furnished to the Representative letters dated respectively as of the date of this Agreement and as of the Closing Date substantially in the forms of the drafts to which the Representative previously agreed. (b) If the Effective Time of the Initial Registration Statement is not prior to the execution and delivery of this Agreement, such Effective Time shall have ~~been declared effective by the Commission~~ occurred not later than ~~5:30~~ 10:00 p.m., ~~Washington, D.C.~~ New York time, on the date of this ~~Agreement,~~ Agreement or such later ~~time and~~ date as shall have been consented to by the ~~Representatives, which consent shall be deemed to have been given if~~ Representative. If the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement, the Prospectus shall have been ~~declared effective~~ filed with the Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement. If the Effective Time of the Additional Registration Statement (if any) is not prior to the execution and delivery of this Agreement, such Effective Time shall have occurred not later than 10:00 p.m., New York time, on ~~or before~~ the date of this Agreement or, if earlier, the time the Prospectus is printed and ~~time requested in the acceleration request submitted on behalf of the Representatives pursuant~~ distributed to ~~Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act~~ any Underwriter, or shall have occurred at such later date as shall have been ~~timely made;~~ consented to by the Representative. Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Seller, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faith. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the ProspectusCommission. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives Underwriters shall have received ~~opinions of Foley & Lardner~~an officers' certificate, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the ~~First Closing Date or the Second~~ Closing Date, as signed by the ~~case may be~~Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of the Seller representing and warranting that, to the ~~effect that: (i) The Company is validly existing~~ best of such officers' knowledge after reasonable investigation, as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the ~~Company consists of 60,000,000 shares of Common Stock~~Closing Date, ~~par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share,~~ the representations and ~~77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock~~ warranties of the ~~Company immediately prior to~~ Seller in this Agreement are true and correct in all material respects, that the ~~sale of the Shares hereunder have been duly authorized~~ Seller has complied with all agreements and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform satisfied in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the ~~requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent~~Closing Date, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, that no stop order suspending the effectiveness of ~~the~~ any Registration Statement has been issued and no proceedings for that purpose have been instituted or or, to the best of their knowledge, are ~~threatened~~ contemplated by the Commission. (d) The Underwriters shall have received an officers' certificate, dated the Closing Date, signed by the Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of the Servicer representing and warranting that, to the best of such officers' knowledge after reasonable investigation, as of the Closing Date, the representations and warranties of the Servicer in this Agreement are true and correct in all material respects, that the Servicer has complied with all agreements and satisfied, in all material respects, all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, that no stop order suspending the effectiveness of any Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the best of their knowledge, are contemplated by the Commission. (e) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Seller, Nissan Motor Co. Ltd., Nissan North America, Inc. ("NNA") or the Servicer which, in the judgment of the Representative, materially impairs the investment quality of the Notes or makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes; (ii) any downgrading in the rating of any debt securities of NNA or any of its direct or indirect subsidiaries by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any such debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by federal or New York authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes. (f) Joy ▇▇▇▇▇, ▇▇q., General Counsel of the Seller, or other counsel satisfactory to the Representative in its reasonable judgment, shall have furnished to the Representative such counsel's written opinion, dated the Closing Date, in substantially the form set forth below, with such changes therein as counsel for the Underwriters shall reasonably agree: (i) The Seller 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, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or the ownership of its property requires such qualification, except where the failure to be in good standing would not have a material adverse effect on the Seller's ability to perform its obligations under the Basic Documents. (ii) The Servicer has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California with corporate power and authority to own its properties and conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or the ownership of its property requires such qualification, except where the failure to be in good standing would not have a material adverse effect on the Servicer's ability to perform its obligations under the Basic Documents. (iii) The Basic Documents have been duly authorized, executed and delivered by each of the Seller and the Servicer, as applicable, and each of the Seller and the Servicer has the corporate power and authority to enter into and perform its respective obligations under the Basic Documents. (iv) The execution, delivery and performance of the Basic Documents by the Seller and the Servicer will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the respective properties or assets of the Seller or the Servicer, pursuant to the terms of the Notes or the charter or bylaws of the Seller or the Servicer, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Seller or the Servicer or any of their respective properties or any material agreement or instrument to which the Seller or the Servicer is a party or by which either the Seller or the Servicer or any of their respective properties is bound. (v) No authorization, approval or consent of any court or governmental agency or authority is necessary in connection with the execution, delivery and performance by the Seller or the Servicer of the Basic Documents to which it is a party, except such as may be required under the Act or the Rules and Regulations and state securities laws, and except for such authorizations, approvals or consents (specified in such opinion) as are in full force and effect as of the Effective Date and the Closing Date. (vi) Nothing has come to such counsel's attention that would cause it to believe that as of the Effective Date and at the Closing Date the Registration Statement and the Prospectus ~~and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement~~ (~~except for~~ other than the financial statements and ~~schedules and~~ the other ~~statistical~~ accounting information contained therein or ~~financial data included therein~~omitted therefrom, as to which such counsel need express no ~~opinion~~belief) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains contain any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements ~~therein~~ therein, in the light of the circumstances under which they were made, not misleading, or that the descriptions therein of statutes and ~~since~~ governmental proceedings and contracts and other documents are inaccurate and do not fairly present the ~~date on which the Registration Statement was initially filed, no event has occurred that was~~ information required to be ~~set forth in~~ shown therein. (vii) Such counsel does not know of any contract or other document of a character required to be filed as an ~~amended or supplemented prospectus or in an amendment~~ exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which is not filed or described as required. (viii) There are no legal or governmental proceedings pending to which the Seller or the Servicer is a party or of which any property of the Seller or the Servicer is the subject, and no such proceedings are known by such counsel to be threatened or contemplated by governmental authorities or threatened by others, (A) that are required to be disclosed in the Registration Statement or (B)(1) asserting the invalidity of all or part of any Basic Document, (2) seeking to prevent the issuance of the Notes, (3) that would materially and adversely affect the Seller's or the Servicer's obligations under any Basic Document to which it is a party, or (4) seeking to affect adversely the federal or state income tax attributes of the Notes. (ix) The Servicer has corporate power and authority to sell and assign the property to be sold and assigned to the Seller pursuant to the Purchase Agreement and has duly authorized such sale and assignment to the Seller by all necessary corporate action. (x) The Seller has corporate power and authority to sell and assign the property to be sold and assigned to and deposited with the Trust and has duly authorized such sale and assignment to the Trust by all necessary corporate action. (xi) The Receivables are "chattel paper" as defined in the Uniform Commercial Code, as in effect in the State of California. (xii) Such counsel is familiar with the Servicer's standard operating procedures relating to the Servicer's acquisition of a perfected first priority security interest in the vehicles financed by the retail installment sale contracts purchased by the Servicer in the ordinary course of the Servicer's business and relating to the sale by the Servicer to the Seller of such contracts and such security interests in the Financed Vehicles in the ordinary course of the Servicer's and the Seller's business. Assuming that the Servicer's standard procedures are followed with respect to the perfection of security interests in the Financed Vehicles (and such counsel has no reason to believe that the Servicer has not or will not continue to follow its standard procedures in connection with the perfection of security interests in the Financed Vehicles), the Servicer has acquired or will acquire a perfected first priority security interest in the Financed Vehicles. (g) O'Melveny & Myer▇ ▇▇▇, special counsel to the Seller, shall have furnished to the Representative their written opinion, dated as of the Closing Date, in substantially the form set forth below, with such changes therein as counsel for the Underwriters shall reasonably agree: (i) Each Basic Document to which the Seller or the Servicer is a party has been ~~so set fo~~duly authorized by all necessary corporate action on the part of such Person and has been executed and delivered by such Person. (ii) Assuming the due authorization, execution and delivery thereof by the Owner Trustee and the Indenture Trustee, each Basic Document to which the Seller or the Servicer is a party constitutes a legally valid and binding obligation of the Seller or the Servicer, as the case may be, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect, relating to or affecting creditors' rights generally and by the application of general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance, injunctive relief or any other equitable remedy (regardless of whether enforcement is considered in a proceeding at law or in equity). (iii) Assuming the Notes have been duly and validly authorized, when executed and authenticated by the Trust as specified in the Indenture and delivered against payment of the consideration specified in this Agreement, the Notes will be legally valid and binding obligations of the Trust, and entitled to the benefits of the Indenture enforceable against the Trust in accordance with their terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect, relating to or affecting creditors' rights generally and by the application of general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance, injunctive relief or any other equitable remedy (regardless of whether enforcement is considered in a proceeding at law or in equity). (iv) Assuming the due authorization, execution and delivery thereof by the Trust and the Indenture Trustee, each of the Sale and Servicing Agreement and the Indenture constitutes the valid and binding obligation of the Trust enforceable against the Trust in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect, relating to or affecting creditors' rights generally and by the application of general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance, injunctive relief or any other equitable remedy (regardless of whether enforcement is considered in a proceeding at law or in equity). (v) Neither the Seller nor the Trust is required to be registered under the Investment Company Act of 1940. (vi) With respect to Financed Vehicles in the State of California, no filing or other action other than (A) the filing of a UCC financing statement naming the Servicer as transferor and the Seller as the transferee and

Appears in 1 contract

Sources: Underwriting Agreement (Nissan Auto Receivables Corp /De)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Offered Securities on any Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company ~~herein set forth as of~~ and the ~~date hereof and as of each Closing Date~~Selling Shareholders herein, to the accuracy of the statements of ~~the Company's~~ Company officers made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company and the Selling Shareholders of ~~its~~ their obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) ~~The~~ On the date of the Prospectus (prior to the execution of this Agreement), on the effective date of any additional registration or any post-effective amendment to any Registration Statement, in each case, that is filed subsequent to the date of this Agreement and on each Closing Date (in each case, at 9:30 A.M., New York City time, on such date), KPMG Audit plc shall have furnished to the Representative a letter or letters, dated the respective date of delivery thereof, in form and substance satisfactory to the Representative. (b) If the Effective Time of the Additional Registration Statement (if any) is not prior to the execution and delivery of this Agreement, such Effective Time shall have ~~been declared effective by the Commission~~ occurred not later than ~~5:30 p.m.~~10:00 P.M., ~~Washington, D.C.~~ New York City time, on the date of this ~~Agreement~~Agreement or, if earlier, the time the Prospectus is printed and distributed to any Underwriter, or shall have occurred at such later ~~time and~~ date as shall have been consented to by the ~~Representatives, which consent~~ Representative. The Prospectus shall ~~be deemed to~~ have been ~~given if~~ filed with the Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement. Prior to such Closing Date, no stop order suspending the effectiveness of a Registration Statement shall have been ~~declared effective~~ issued and no proceedings for that purpose shall have been instituted or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Underwriters’ reasonable satisfaction. (c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or ~~before the date and time requested~~ any development or event involving a prospective change, in the ~~acceleration request submitted on behalf~~ condition (financial or other), business, properties or results of operations of the ~~Representatives pursuant~~ Company or its subsidiaries which, in the judgment of the Representative, is material and adverse and makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities, preferred shares, financial strength or claims paying ability of the Company or any of the Designated Subsidiaries by any ‘‘nationally recognized statistical rating organization’’ (as defined for purposes of Rule ~~461~~ 436(g) under the Act) or any public announcement that any such organization has under surveillance or review its rating of any debt securities or preferred shares of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook; ~~all filings required~~ (iii) any change in U.S., U.K., Bermudian or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Representative, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the NYSE, or any setting of minimum prices for trading on such exchange; (v) or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by ~~Rules 424(b~~United States federal, New York, U.K. or Bermudian authorities; (vii) a change or development involving a prospective change in Bermuda taxation affecting the Company, the Offered Securities or transfers thereof; (viii) any major disruption of settlements of securities or clearance services in the United States, United Kingdom or Bermuda or (ix) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, the United Kingdom or Bermuda, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Representative, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and ~~430A under~~ payment for the ~~Act~~ Offered Securities. (d) The Representative shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special United States counsel for the Company in the form of Annex I hereto. (e) The Representative shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇, Bermuda counsel for the Company in the form of Annex II hereto. (f) The Representative shall have received an opinion, dated the Closing Date, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, U.K. counsel for the Company, in the form of Annex III hereto. (g) The Representative shall have received opinions, dated the Closing Date, of ▇▇▇▇▇▇▇▇ Chance LLP, counsel for the Selling Shareholders, in the form of Annex IV hereto. (h) The Representatives shall have received opinions, dated the Closing Date of local counsel in each jurisdiction where each Selling Shareholder has been ~~timely made~~organized, substantially in the form of Annex V. (i) The Representative shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated applicable Closing Date, with respect to the Registration Statements, the Prospectus and other related matters as the Representative may require, and the Selling Shareholders and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (j) The Representative shall have received a certificate or certificates, dated the applicable Closing Date, of the Chief Executive Officer and the Chief Financial Officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state that: the representations and warranties of the Company in this Agreement are true and correct; the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; no stop order suspending the effectiveness of ~~the Registration Statement shall have been issued by the Commission or~~ any state securities commission nor, to the knowledge of the Company, shall any proceedings for that purpose have been instituted or threatened; and any request of the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faith. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives shall have received opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are ~~threatened~~ contemplated by the Commission; the ~~Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the~~ Additional Registration Statement (~~except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion~~if any) ~~comply as to form in all material respects with~~ satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule 462(b), including payment of the applicable filing fee in accordance with Rule 111(a) or (b) under the Act; , prior to the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or time the Prospectus ~~that are not so described~~was printed and distributed to any Underwriter; and, ~~nor,~~ subsequent to ~~such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document~~ the date of ~~a character required to be described~~ the most recent financial statements in ~~the Registration Statement or~~ the Prospectus, there has been no material adverse change, or ~~required to be filed under the Exchange Act if upon such filing they would be incorporated~~any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole ~~or in part, by reference therein, or to be filed~~ except as ~~an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements~~ set forth in the Prospectus ~~under the heading "Description of Capital Stock,"~~ or as described in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings;certificate. (ixk) The Company ~~has full corporate power~~ shall have provided the Representative with copies of such additional opinions, certificates, letters and ~~authority to enter into and perform this Agreement;~~ documents as the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD);Representative reasonably requests. (xl) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws);[Reserved] (xim) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or At any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters ~~on or before each Closing Date. (e) The Representatives~~ shall have ~~received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be,~~ been furnished with ~~respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel~~ such documents and ~~shall have exhibited to them such papers and records~~ opinions as ~~such counsel~~ they may reasonably ~~request~~ require for the purpose of enabling them to pass upon ~~such matters~~the issuance and sale of the Offered Securities, as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company and the Selling Shareholders in connection with the issuance and sale of the Offered Securities, as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters. (fn) The ~~Representatives~~ Offered Securities shall ~~have received~~ be listed on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, NYSE and the Company ~~has complied~~ shall not have taken any action designed or likely to have the effect of delisting the Offered Securities from the NYSE. (o) If any condition specified in ~~all material respects with all the agreements~~ this Section shall not have been fulfilled when and ~~satisfied all the conditions~~ as required to be ~~performed or satisfied~~ fulfilled, this Agreement may be terminated by it the Representative by notice to the Company at any time at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration StatementClosing Date, and such ~~documents contain all statements~~ termination shall be without liability of ~~material fact required~~ any party to ~~be stated therein~~any other party except as provided in Section 5(a)(xi) and except that Sections 2, 8 and ~~do not include~~ 10 shall survive any ~~untrue statement~~ such termination and remain in full force and effect. The Representative may in its sole discretion waive on behalf of ~~a material fact or omit to state~~ the Underwriters compliance with any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment conditions to the ~~Registration Statement that has not been so set fo~~obligations of the Underwriters hereunder.

Appears in 1 contract

Sources: Underwriting Agreement (Aspen Insurance Holdings LTD)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of the Company ~~herein set forth as of the date hereof and as of each Closing Date~~herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Company made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Prospectus shall have been ~~declared effective~~ filed by the Company with the Commission ~~not later than 5:30 p.m., Washington, D.C. time, on~~ pursuant to Rule 424(b) within the ~~date of this Agreement, or such later~~ applicable time period prescribed for filing by the 1933 Act Regulations and ~~date as~~ in accordance herewith and each Permitted Free Writing Prospectus shall have been ~~consented to~~ filed by the ~~Representatives~~Company with the Commission within the applicable time periods prescribed for such filings by, ~~which consent shall be deemed~~ and otherwise in compliance with, Rule 433. (b) At or after the Applicable Time and prior to ~~have been given if~~ the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued by and no proceedings for that purpose or pursuant to Section 8A of the ~~Commission or any state securities commission nor~~1933 Act shall have been instituted or, to the knowledge of the ~~Company~~Company or you, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be threatened by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) ~~Subsequent~~ At or after the Applicable Time and prior to the ~~execution~~ Closing Date, the rating assigned by M▇▇▇▇’▇ Investors Service, Inc. or S&P Global Ratings (or any of their successors) to any debt securities or preferred stock of the Company as of the date of this ~~Agreement,~~Agreement shall not have been lowered. (id) Since the respective most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus and up to the Closing Date, there shall not have ~~occurred~~ been any material adverse change in the condition of the Company, financial or ~~development involving~~otherwise, except as reflected in or ~~which could be reasonably expected~~ contemplated by the Pricing Disclosure Package and the Prospectus, and, since such dates and up to ~~involve~~the Closing Date, ~~a Material Adverse Effect, whether or~~ there shall not ~~arising from~~ have been any material transaction entered into by the Company other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which ~~on the Company,~~ in ~~any such case described in clause (i) or (ii) above,~~ your reasonable judgment is ~~in the reasonable and good faith opinion of the Representatives~~ so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Shares~~ Notes on the terms and in the manner contemplated in by the ~~Registration Statement~~ Pricing Disclosure Package and the Prospectus. (ce) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives You shall have received ~~opinions~~ an opinion of ~~Foley & Lardner, special couns~~R▇▇▇▇▇ ▇. ▇r ▇▇▇▇ III, Esq., Deputy General Counsel of Duke Energy Business Services LLC, the ~~Company~~ service company subsidiary of Duke Energy Corporation (as who in such capacity provides legal services to the ~~matters set forth below in subsections (i~~Company), or other appropriate counsel reasonably satisfactory to the Representatives (iiwhich may include Duke Energy Corporation’s other “in-house” counsel), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the ~~First Closing Date or the Second~~ Closing Date~~, as the case may be~~, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the ~~laws~~ law of ~~Delaware~~the State of North Carolina, with ~~full corporate~~ power and authority (corporate and other) to ~~own, lease and operate~~ own its properties and conduct its business as ~~presently conducted and as~~ described in the Pricing Disclosure Package and the Prospectus and ~~the Registration Statement;~~to enter into and perform its obligations under this Agreement. (ii) The ~~authorized capital stock~~ Company is duly qualified to do business in each jurisdiction in which the ownership or leasing of its property or the conduct of its business requires such qualification, except where the failure to so qualify, considering all such cases in the aggregate, does not have a material adverse effect on the business, properties, financial condition or results of operations of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share;Company. (iii) The ~~issued and outstanding shares of capital stock~~ Registration Statement became effective upon filing with the Commission pursuant to Rule 462 of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted)1933 Act Regulations, and, to the best of such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's ’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened by under the ~~Commission;~~ 1933 Act. (iv) The descriptions in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package and the Prospectus ~~and~~ of any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings ~~that~~ are accurate and fairly present the information required to be ~~described~~ shown, and such counsel does not know of any litigation or any legal or governmental proceeding instituted or threatened against the Company or any of its properties that would be required to be disclosed in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package or the Prospectus ~~that are~~ and is not so ~~described~~disclosed. (v) This Agreement has been duly authorized, ~~nor~~executed and delivered by the Company. (vi) The issuance and sale of the Notes by the Company and the execution, to delivery and performance by the Company of this Agreement, the Indenture and the Notes will not contravene any of the provisions of the Articles or Bylaws of the Company, the North Carolina Business Corporation Act or any statute or any order, rule or regulation of which such ~~counsel's knowledge~~counsel is aware of any court or governmental agency or body having jurisdiction over the Company, ~~is there~~ any ~~transaction~~of its properties or any of its subsidiaries, ~~relationship~~nor will such action conflict with or result in a breach or violation of any of the terms or provisions of, ~~agreement~~or constitute a default under any indenture, ~~contract~~ mortgage, deed of trust, loan agreement or other ~~document of~~ agreement to which the Company is a ~~character required to be described in the Registration Statement~~ party or ~~the Prospectus,~~ by which it or ~~required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein,~~ its property is bound or to ~~be filed as an exhibit to~~ which any of its property or ~~incorporated by reference in the Registration Statement by the Act, which~~ assets is ~~not described,~~ subject or any instrument filed or incorporated by reference ~~required;~~as an exhibit to the Annual Report on Form 10-K of the Company for the fiscal year ended December 31, 2021 or any subsequent Quarterly Report on Form 10-Q of the Company or any Current Report on Form 8-K of the Company with an execution or filing date after December 31, 2021, which affects in a material way the Company’s ability to perform its obligations under this Agreement, the Indenture or the Notes. (vii) The North Carolina Utilities Commission has issued appropriate orders with respect to the issuance and sale of the Notes in accordance with this Agreement, and, to the best of such counsel’s knowledge, such orders are still in effect; the issuance and sale of the Notes to the Underwriters are in conformity with the terms of such orders; and no other authorization, approval or consent of any other governmental body (other than in connection or compliance with the provisions of the securities or Blue Sky laws of any jurisdiction) is legally required for the issuance and sale of the Notes pursuant to this Agreement. (viii) ~~Statements set forth in~~ The Indenture has been duly authorized, executed and delivered by the ~~Prospectus~~ Company and qualified under the ~~heading "Description of Capital Stock," in~~ 1939 Act, and, assuming the ~~description~~ due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument of the ~~Common Stock contained~~ Company, enforceable against the Company in ~~the Company's Registration Statement on Form 8-A, filed~~ accordance with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings;its terms. (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein Notes have been duly ~~authorized~~ authorized, executed and issued by the Company and, when the same have been authenticated by ~~all necessary corporate action and this Agreement has been duly executed~~ the Trustee as specified in the Indenture and delivered ~~by and on behalf of the Company~~against payment therefor, ~~and is a legal,~~ will constitute valid and legally binding ~~agreement~~ obligations of the Company enforceable against the Company in accordance with ~~its~~ their terms, and are entitled to the benefits afforded by the Indenture in accordance with the terms of the Indenture and the Notes. (x) No consent, approval, authorization, order, registration or qualification of or with any federal or North Carolina governmental agency or body or, to such counsel’s knowledge, any federal or North Carolina court, which has not been obtained or taken and is not in full force and effect, is required to authorize or for the Company to consummate the transactions contemplated by this Agreement, except ~~that rights to indemnity~~ for such consents, approvals, authorizations, registrations or ~~contribution hereunder~~ qualifications as may be ~~limited~~ required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by ~~applicable law~~ the Underwriters. Such counsel may state that such counsel’s opinions in paragraphs (viii) and ~~except as~~ (ix) above are subject to ~~enforceability~~ the effects of ~~this Agreement may be limited by~~ bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and other similar laws relating to or affecting creditors' ’ rights generally, and by ~~equitable~~ general principles ~~limiting the right~~ of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and to ~~specific performance or other equitable relief; and,~~ an implied covenant of good faith and fair dealing. Such counsel shall state that nothing has come to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument ’s attention that has caused such counsel to ~~which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or~~ believe that each document incorporated by reference ~~as an exhibit to~~ in the Registration Statement~~; or (C) violate any statute~~, ~~ordinance~~the Pricing Disclosure Package and the Prospectus, ~~order~~when filed, ~~rule~~was not, ~~decree or regulation of any court~~on its face, ~~regulatory or governmental body~~appropriately responsive, ~~arbitrator~~in all material respects, ~~administrative agency or other instrumentality~~ to the requirements of the ~~United States having jurisdiction over~~ 1934 Act and the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the 1934 Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amendedRegulations. Such counsel shall also state that ~~they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their~~ nothing has come to such counsel’s attention that has caused such counsel ~~during which the content of~~ to believe that (i) the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness as of the ~~statements contained or incorporated by reference into~~ effective date with respect to the ~~Registration Statement or the Prospectus, on the basis~~ Underwriters pursuant to Rule 430B(f)(2) of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date1933 Act Regulations, contained any untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package at the Applicable Time contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) that the Prospectus, ~~or any amendment or supplement thereto including any document incorporated by reference therein,~~ as of its ~~issue~~ date ~~and as of~~ or at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading (~~misleading. Such counsel may also state that, except as otherwise expressly provided ~~that~~ in such opinion, such counsel ~~need express no belief regarding~~ does not assume any responsibility for the ~~financial~~ accuracy, completeness or fairness of the statements ~~and related schedules and other financial or statistical data~~ contained in or incorporated by reference into the Registration Statement, the Pricing Disclosure Package or the Prospectus and does not express any ~~amendment thereto including any document~~ opinion or belief as to (i) the financial statements or other financial and accounting data contained or incorporated by reference therein, or excluded therefrom, including with respect to compliance with XBRL interactive data requirements, (ii) the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention statement of the ~~attorneys~~ eligibility and qualification of the Trustee included in ~~such firm who have been involved in the preparation or review of~~ the Registration Statement (the “Form T-1”) or (iii) the information in the Pricing Disclosure Package and the Prospectus under the caption “Book-Entry System.” In rendering the foregoing opinion, such counsel may state that ~~would give them actual current knowledge~~ such counsel does not express any opinion concerning any law other than the law of the ~~existence or absence~~ State of ~~such matter in question. In rendering such opinion, counsel for the Company may rely~~North Carolina or, to the extent set forth in the foregoing opinions, the federal securities laws. Such counsel ~~deems~~ may also state that such ~~reliance proper,~~ counsel has relied as to certain factual matters ~~of fact upon certificates of~~ on information obtained from public officials, officers of the Company and ~~any governmental officials, and copies of all~~ other sources believed by such ~~certificates shall~~ counsel to be ~~furnished to the Representatives and for the Underwriters on or before each Closing Date~~reliable. (ef) ~~The Representatives~~ You shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇Hunton A▇▇▇▇▇▇ ▇▇▇▇~~sel and Secretary~~▇ LLP, of counsel to the Company, ~~in their respective capacities as such~~dated the Closing Date, to the effect that: (i) ~~The representations~~ This Agreement has been duly authorized, executed and ~~warranties of~~ delivered by the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate;Company. (ii) The ~~Commission~~ Indenture has ~~not issued an order preventing or suspending~~ been duly authorized, executed and delivered by the ~~use~~ Company and, assuming the due authorization, execution and delivery thereof by the Trustee, is a valid and binding obligation of the ~~Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending~~ Company, enforceable against the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction;Company in accordance with its terms. (iii) ~~Each~~ The Notes have been duly authorized and executed by the Company, and, when duly authenticated by the Trustee and issued and delivered by the Company against payment therefor in accordance with the terms of this Agreement and the Indenture, the Notes will constitute valid and binding obligations of the ~~respective signatories has examined~~ Company, entitled to the ~~Registration Statement~~ benefits of the Indenture and enforceable against the Company in accordance with their terms. (iv) The statements set forth (i) under the caption “Description of Debt Securities” in the Base Prospectus and (ii) under the caption “Description of the Notes” in the Pricing Disclosure Package and the Prospectus, insofar as such statements purport to summarize certain provisions of the Indenture and ~~any amendment or supplement thereto~~the Notes, ~~including any documents filed under the Exchange Act and deemed to be incorporated by reference~~ fairly summarize such provisions in ~~the Registration Statement, and such documents contain~~ all material respects. (v) The statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in ~~an amended or supplemented prospectus or~~ the Pricing Disclosure Package and the Prospectus under the caption “Certain U.S. Federal Income Tax Considerations for Non-U.S. Holders,” insofar as such statements purport to constitute summaries of matters of United States federal income tax law, constitute accurate and complete summaries, in ~~an amendment~~ all material respects, subject to the ~~Registration Statement that~~ qualifications set forth therein. (vi) No Governmental Approval (as defined below), which has not been so obtained or taken and is not in full force and effect, is required to authorize, or is required for, the execution or delivery of this Agreement by the Company or the consummation by the Company of the transactions contemplated hereby; except for such consents, approvals, authorizations, orders, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters. (vii) The Company is not and, solely after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Prospectus, will not be subject to registration and regulation as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended. (viii) The execution and delivery by the Company of this Agreement and the Indenture and the consummation by the Company of the transactions contemplated hereby, including the issuance and sale of the Notes, will not violate or conflict with, or result in any contravention of, any Applicable Laws (as defined below) of the States of North Carolina and New York. (ix) The statements set foforth in the Pricing Disclosure Package and the Prospectus under the caption “Underwriting,” insofar as such statements purport to summarize certain provisions of this Agreement, fairly summarize such provisions in all material respects.

Appears in 1 contract

Sources: Underwriting Agreement (Piedmont Natural Gas Co Inc)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject to the ~~accuracy~~ condition that each of the ~~representations~~ Registration Statement, the ADS Registration Statement and ~~warranties~~ the Exchange Act Registration Statement shall have become effective not later than 5:00 p.m. (New York City time) on ~~the part of the Company herein set forth as of~~ the date hereof and as of each Closing Date, to the accuracy of the statements of the Company's officers made pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder, and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ representations and warranties of the Company and the Selling Shareholders contained in this Agreement and any certificates delivered pursuant to this Agreement shall be true and correct as of such Closing Date, and the Company and the Selling Shareholders shall have ~~been declared effective by the Commission not later than 5:30 p.m., Washington, D.C. time, on the date~~ performed all of their respective obligations under this ~~Agreement, or such later time and date as~~ Agreement theretofore to be performed. (b) The Representatives shall have ~~been consented to by the Representatives~~received on such Closing Date a certificate, ~~which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date~~ dated such Closing Date and ~~time requested in the acceleration request submitted~~ signed on behalf of the ~~Representatives pursuant~~ Company by an executive officer of the Company, to ~~Rule 461 under~~ the ~~Act;~~ effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such Closing Date, (ii) the Company have complied with all ~~filings~~ of the agreements, performed all of their obligations and satisfied all of the conditions hereunder on their part that are required ~~by Rules 424(b~~to be complied with, performed or satisfied on or before such Closing Date and (iii) subsequent to the date of the most recent financial statements in the Registration Statement, the General Disclosure Package and ~~430A under~~ the ~~Act~~ Final Prospectus, there has been no development or event having a Material Adverse Effect, or any development or event involving a prospective change that is reasonably likely to have a Material Adverse Effect except as set forth in the General Disclosure Package or as described in such certificate. (c) The Final Prospectus shall have been ~~timely made;~~ filed with the Commission in accordance with the Rules and Regulations and Section 5(A)(a) hereof. Prior to such Closing Date, no stop order suspending the effectiveness of ~~the~~ a Registration Statement shall have been issued ~~by the Commission or any state securities commission nor, to the knowledge of the Company, shall any~~ and no proceedings for that purpose shall have been instituted ~~or threatened; and any request of~~ or, to the ~~Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise~~Company’s best knowledge, shall ~~have been complied with to~~ be contemplated by the ~~reasonable satisfaction of the Representatives acting in good faith~~Commission. (bd) Subsequent to the execution and delivery of this ~~Agreement, (i)~~ Agreement and prior to such Closing Date, there shall not have occurred any ~~change or development involving~~change, or ~~which could be reasonably expected to involve~~any development involving a prospective change, ~~a Material Adverse Effect, whether or not arising from transactions~~ in the ~~ordinary course~~ condition, financial or otherwise, or in the earnings, business or operations of ~~business, and (ii)~~ the Company ~~shall not have sustained any loss or interference from any labor dispute~~and the Controlled Entities, ~~strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having~~ taken as a ~~Material Adverse Effect~~whole, the effect of which in the reasonable judgment of the Representatives is material and adverse and, in the reasonable judgment of the Representatives, makes it impracticable to proceed with the offering, sale or delivery of the Offered Securities on such Closing Date on the terms and in the manner contemplated by this Agreement. (e) There shall not be any material adverse legislative or regulatory developments in the PRC, including but not limited to the M&A Rules and Related Clarifications and laws, rules and regulations that would affect the validity and enforceability of the VIE Agreements, which in the reasonable judgment of the Representatives, in consultation with the Company, ~~in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to~~ would make it ~~impracticable~~ inadvisable or ~~inadvisable~~ impractical to proceed with the public offering or the delivery of the ~~Shares~~ Offered Securities on such Closing Date on the terms and in the manner contemplated in the Registration Statement and the Prospectus. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives shall have received opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received letters, dated, respectively, the date hereof and such Closing Date, of PricewaterhouseCoopers, confirming that they are a registered public accounting firm and independent public accountants within the meaning of the Securities Laws and substantially in form and substance satisfactory to the Underwriters, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Final Prospectus; provided that the letter delivered on each Closing Date shall use a “cut-off date” not earlier than three business days prior to such Closing Date. (g) The Representatives shall have received the customary opinions and disclosure letter of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, United States counsel for the Company, dated such Closing Date, in form and substance satisfactory to the Representatives. (h) The Company shall have received a ~~certificate~~ customary opinion from Fangda Partners, PRC counsel for the Company, dated such Closing Date, in form and substance satisfactory to the Representatives. A copy of ~~Kenneth W. Krueger~~such opinion shall have been provided to the Representatives with consent from such counsel. (i) The Representatives shall have received a customary opinion from ▇▇▇▇▇▇ and Calder, ~~Senior Vic~~Cayman Islands counsel for the Company, dated such Closing Date, in form and substance satisfactory to the Representatives. (j) The Representatives shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, United States counsel for the Underwriters, the customary opinions and disclosure letter, dated such Closing Date, in form and substance satisfactory to the Representatives. (k) The Representatives shall have received from King & Wood Mallesons, PRC counsel for the Underwriters, a customary opinion, dated such Closing Date, in form and substance satisfactory to the Representatives. (l) The Representatives shall have received one or more customary opinions from U.S. counsels related to the Selling Shareholders, dated such Closing Date, in form and substance satisfactory to the Representatives. (m) The Representatives shall have received one or more customary opinions of the Selling Shareholders’ local counsels, dated such Closing Date, in form and substance satisfactory to the Representatives. (n) The Representatives shall have received a customary opinion from ▇▇▇▇▇▇▇▇▇ ▇▇~~▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇~~▇▇▇▇▇ ▇▇▇▇ & ▇~~sel~~ ▇▇▇▇ LLP, counsel for the Depositary, in form and ~~Secretary~~substance satisfactory to the Representatives. (o) On or prior to the date hereof, the Representatives shall have received duly executed lock-up agreements from: (i) each of ▇▇▇▇ ▇▇▇ Ma and ▇▇▇▇▇▇ ▇. ▇▇▇▇, substantially in the form set forth in Exhibit A1; (ii) each of Yahoo! Inc., Yahoo! Hong Kong Holdings Limited, SB China Holdings Pte Ltd, SoftBank Corp. and SBBM Corporation, substantially in the form set forth in Exhibit A2; (iii) each of the non-executive directors listed in Schedule D1, substantially in the form set forth in Exhibit A3; (iv) each of the officers, partners, employees and participants in the Company’s incentive plans listed in Schedule D2, substantially in ~~their respective capacities as such~~the form set forth in Exhibit A4; (v) each of the existing shareholders listed in Schedule D3, substantially in the form set forth in Exhibit A5; and (vi) Golden Web Investment Limited, substantially in the form set forth in Exhibit A6; and each of the lock-up letters referred to in clauses (i) to (vi) shall be in full force and effect on such Closing date. (p) As of such Closing Date, the Company and the Depositary shall have executed and delivered the Deposit Agreement and the Deposit Agreement shall be in full force and effect and the Company and the Depositary shall have taken all action necessary to permit the deposit of the Offered Shares and the issuance of the Offered Securities in accordance with the Deposit Agreement. (q) The Depositary shall have furnished or caused to be furnished to the ~~effect that:~~Representatives at such Closing Date, certificates satisfactory to the Representatives evidencing the deposit with it of the Offered Shares being so deposited against issuance of the Offered Securities to be delivered by the Company at such Closing Date, and the execution, countersignature (if applicable), issuance and delivery of such Offered Securities pursuant to the Deposit Agreement and such other matters related thereto as the Representatives may reasonably request. (r) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereunder. (s) Offered Securities shall have been approved to be listed on the Exchange. (t) Each Selling Shareholder (other than Yahoo! Inc. and Yahoo! Hong Kong Holdings Limited) shall have delivered to the Representatives a Power of Attorney and a Custody Agreement, each of which duly executed and in form and substance satisfactory to the Representatives. (u) Each of Yahoo! Inc. and Yahoo! Hong Kong Holdings Limited shall have delivered to the Representatives executed transfer forms for the Offered Shares represented by the Offered Securities to be respectively sold by Yahoo! Inc. and Yahoo! Hong Kong Holdings Limited hereunder. (v) (i) The Representative shall have received a certificate, dated such Closing Date, of an attorney-in-fact of each Selling Shareholder, in which the attorney-in-fact shall state that: the representations and warranties of ~~the Company set forth~~ such Selling Shareholder in ~~Section 2 hereof~~ this Agreement are true and correct as of ~~the date of this Agreement and as of the date of~~ such ~~certificate, and the Company~~ Closing Date; such Selling Shareholder has complied ~~in all material respects~~ with all ~~the~~ agreements and satisfied all ~~the~~ conditions on their part to be performed or satisfied ~~by it~~ hereunder at or prior to such Closing Date; this Agreement is in the ~~date~~ form or substantially the form approved by such Selling Shareholder; and such attorney-in-fact was duly acting as the attorney-in-fact of such ~~certificate; (ii) The Commission has not issued an order preventing or suspending~~ Selling Shareholder at the ~~use~~ respective times of the ~~Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending~~ signing and delivery of this Agreement, the ~~effectiveness of~~ applicable lock-up agreement for such Selling Shareholder, the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, Custody Agreement and any ~~amendment~~ other document executed and delivered by such attorney-in-fact prior to or ~~supplement thereto~~on such Closing Date on behalf of such Selling Shareholder, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set foif any.

Appears in 1 contract

Sources: Underwriting Agreement (Alibaba Group Holding LTD)

Conditions of the Obligations of the Underwriters. The obligations of the ~~several~~ Underwriters ~~under this Agreement shall~~ to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of the date hereof~~ Depositor and ~~as of each Closing Date~~MBFS herein, to the accuracy of the ~~statements~~ certifications of officers of the ~~Company's officers~~ Depositor and MBFS made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Depositor of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The Registration Statement shall ~~have been declared~~ be effective by at the ~~Commission not later than 5:30 p.m.~~Execution Time, ~~Washington, D.C. time,~~ and on the ~~date of this Agreement~~Closing Date, or such later time and date as shall have been consented to by the Representatives, which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued by and no proceedings for that purpose or pursuant to Section 8A of the ~~Commission or any state securities commission nor~~Act shall have been instituted or, to the knowledge of the ~~Company~~Depositor or the Representatives, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (b) Each of the Preliminary Prospectus and the Prospectus and any supplements thereto shall have been filed (if required) with the Commission in accordance with the Rules and Regulations and Section 5(a) hereof. The Pricing Free Writing Prospectus shall have been filed with the Commission in accordance with Rule 433(d) of the Rules and Regulations. (c) On or prior to the date of this Agreement and on or prior to the Closing Date, the Representatives shall have received a letter or letters, dated as of the date of this Agreement and as of the Closing Date, respectively, from a nationally recognized firm of independent registered public accountants, who are independent of MBFS and reasonably acceptable to the Representatives, substantially in the form of the drafts to which the Representatives have previously agreed and otherwise in form and substance satisfactory to the Representatives and their counsel. (d) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred (i) any ~~change or development involving~~change, or ~~which could be reasonably expected to involve~~any development involving a prospective change, ~~a Material Adverse Effect~~in or affecting particularly the business or properties of the Issuer, ~~whether~~ the Depositor or ~~not arising from transactions~~ MBFS which, in the ~~ordinary course~~ judgment of ~~business~~the Representatives, ~~and~~ materially impairs the investment quality of the Notes or makes it impractical or inadvisable to market the Notes; (ii) any suspension or limitation of trading in securities generally on the ~~Company shall not have sustained~~ New York Stock Exchange, or any ~~loss~~ setting of minimum or ~~interference from~~ maximum prices for trading on such exchange, or a material disruption in commercial banking or securities settlement or clearance services in the United States or with respect to Clearstream or Euroclear systems in Europe; (iii) any ~~labor dispute~~general commercial banking moratorium declared by Federal, ~~strike~~Delaware or New York authorities; or (iv) any outbreak or escalation of major hostilities in which the United States is involved, ~~fire~~any declaration of war by Congress, ~~flood~~or any other substantial national or international calamity or emergency if, ~~windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect~~in the reasonable judgment of the Representatives, the effect of ~~which~~ any such outbreak, escalation, declaration, calamity or emergency on the ~~Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make~~ U.S. financial markets makes it ~~impracticable~~ impractical or inadvisable to proceed with the ~~public offering or~~ offering, sale of and payment for the ~~delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus~~Notes. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (de) The Representatives shall have received opinions of ~~Foley & Lardner~~Sidley Austin LLP, ~~special couns▇▇ ▇▇r~~ counsel to MBFS, the ~~Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)),~~ Depositor and the ~~Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii)~~ Issuer addressed to the Representatives, dated the Closing Date and satisfactory in form and substance to the Representatives relating to customary corporate and enforceability, securities law, security interest, and true sale/nonconsolidation matters. The Representatives shall have also received from such counsel a negative assurance statement regarding the contents of the Registration Statement, the Preliminary Prospectus and the Final Prospectus), satisfactory in form and substance to the Representatives. (f) The Representatives shall have received opinions of _________, or other counsel to MBFS, the Depositor and the Issuer addressed to the Representatives, dated the Closing Date and satisfactory in form and substance to the Representatives relating to customary corporate and enforceability, securities law, security interest, and true sale/nonconsolidation matters. The Representatives shall have also received from such counsel a negative assurance statement regarding the contents of the Registration Statement, the Preliminary Prospectus and the Final Prospectus), satisfactory in form and substance to the Representatives. (g) The Representatives shall have received opinions of ______________________, [in-house] counsel to MBFS addressed to the Representatives, dated the Closing Date and satisfactory in form and substance to the Representatives, with respect to customary corporate matters relating to MBFS, the Depositor and the Issuer. (h) The Representatives shall have received an opinion addressed to them by Sidley Austin LLP, in its capacity as special tax counsel to the ~~representatives~~ Issuer, dated the Closing Date, substantially to the effect that the statements in each of the Preliminary Prospectus and the Prospectus under the heading “Material Federal Income Tax Consequences,” to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, have been prepared or reviewed by such counsel and accurately describe the material Federal income tax consequences to holders of the Notes, and the statements in each of the Preliminary Prospectus and the Prospectus under the heading “Certain ERISA Considerations,” to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, have been prepared or reviewed by such counsel and accurately describe the material consequences to holders of the Notes under ERISA. (i) The Representatives shall have received an opinion addressed to them of in-house counsel to the Asset Representations Reviewer, dated the Closing Date and satisfactory in form and substance to the Representatives and their counsel. (j) The Representatives shall have received an opinion addressed to them of ______________________, in its capacity as counsel to the Underwriters, ~~and~~ dated the ~~First~~ Closing Date, with respect to the validity of the Notes and such other related matters as the Representatives shall require and the Depositor shall have furnished or caused to be furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. (k) The Representatives shall have received an opinion addressed to them, the Depositor and the Servicer of ______________________, in its capacity as counsel to the Indenture Trustee, dated the Closing Date, in form and substance satisfactory to the Representatives and their counsel. (l) The Representatives shall have received an opinion addressed to them, the Depositor and the Servicer of ______________________, counsel to the Owner Trustee, and such other counsel acceptable to the Representatives and their counsel. (m) The Representatives shall have received certificates dated the Closing Date of any two of the Chairman of the Board, the President, the Executive Vice President, any Vice President, the Treasurer, any Assistant Treasurer, the Secretary, the principal financial officer or the ~~Second Closing Date~~principal accounting officer of each of the Depositor and MBFS, in its individual capacity and as Servicer, in which such officers shall state that, to the best of their knowledge after reasonable investigation, (i) the representations and warranties of the Depositor, MBFS and/or the Servicer, as the case may be, to contained in this Agreement are true and correct and the ~~effect that: (i) The Company is validly existing~~ representations and warranties of the Depositor, MBFS and/or the Servicer, as ~~a corporation in good standing under~~ the ~~laws of Delaware~~case may be, ~~with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described~~ contained in the ~~Prospectus~~ Trust Agreement, the Receivables Purchase Agreement and the ~~Registration Statement; (ii) The authorized capital stock of~~ Sale and Servicing Agreement, as applicable, are true and correct in all material respects, that the ~~Company consists of 60,000,000 shares of Common Stock~~Depositor, ~~par value $1.00 per share~~MBFS and/or the Servicer, ~~14,000,000 shares of Class A common stock~~as the case may be, ~~par value $5.00 per share,~~ has complied with all agreements and ~~77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately~~ satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the ~~sale of the Shares hereunder have been duly authorized and validly issued~~Closing Date, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or pursuant to Section 8A of the Act have been instituted or are ~~threatened~~ contemplated by the ~~Commission;~~ Commission and (ii) other than as described in such certificate, since the ~~Registration Statement and~~ Time of Sale, no material adverse change, or development involving a prospective material adverse change, in or affecting particularly the ~~Prospectus and any amendment~~ business or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements properties of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the ActIssuer, the ~~Exchange Act~~Depositor, ~~applicable Blue Sky Laws and~~ MBFS and/or the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing DateServicer, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such mattershas occurred. (fn) The Representatives shall have received evidence satisfactory to it of the filing of all UCC financing statements necessary to perfect the transfer of the interest of MBFS in the Receivables and the proceeds thereof to the Depositor, the transfer of the interest of the Depositor in the Receivables and the proceeds thereof to the Issuer and the grant of the security interest by the Issuer in the Receivables and the proceeds thereof to the Indenture Trustee. (o) The Representatives shall have received, from each of the Depositor and MBFS, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of (i) the certificate of formation, (ii) the limited liability company agreement, (iii) applicable resolutions authorizing the transactions contemplated hereby and by the Basic Documents and (iv) the designation of incumbency of each such entity. (p) Each class of Notes shall have been rated by the Hired NRSROs as set forth in the Ratings Free Writing Prospectus, and in each case shall not have been placed on ~~each~~ any creditwatch or review with a negative implication for downgrade. (q) On the Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose Certificates shall have been ~~initiated or are pending under~~ issued and purchased by the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set foDepositor.

Appears in 1 contract

Sources: Underwriting Agreement (Daimler Retail Receivables LLC)

Conditions of the Obligations of the Underwriters. The obligations of the ~~several~~ Underwriters ~~under this Agreement shall~~ to purchase the Firm Shares and the Option Shares, as the case may be, at any Closing Date, and the other obligations of the Underwriters hereunder will be subject -18- to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of~~ Company, both at the ~~date hereof~~ Execution Time and at and as of each Closing Date, to the accuracy of the statements of ~~the Company's~~ Company officers made pursuant to the provisions hereof, to the timely performance ~~in all material respects~~ by the Company of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The Registration Statement shall have ~~been declared~~ become effective by (or, if a post-effective amendment is required to be filed pursuant to Rule 430A under the ~~Commission~~ Act, such post-effective amendment shall have become effective) not later than ~~5:30 p.m., Washington, D.C.~~ 2:00 pm. Arizona time, on the date of this ~~Agreement,~~ Agreement or at such later date and time as you may approve in writing, and ~~date as~~ at each Closing Date. (b) No order preventing or suspending the use of any Preliminary Prospectus or the Prospectus shall have been ~~consented to by the Representatives, which consent~~ made or shall be ~~deemed to have been given if the Registration Statement shall have been declared effective on or before the date~~ in effect and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereof shall have been issued and no proceedings for the issuance of such an order shall have been initiated or threatened by the Commission or any ~~state~~ Blue Sky or other securities ~~commission nor~~authority of any jurisdiction, ~~to the knowledge of the Company, shall any proceedings for that purpose have been instituted or threatened;~~ and any request on the part of the Commission or any ~~state~~ Blue Sky or other securities ~~commission~~ authority of any jurisdiction for ~~inclusion of~~ additional information (to be included in the Registration ~~Statement,~~ Statement or the Prospectus or otherwise, ) shall have been disclosed to you and complied with to the reasonable satisfaction of ~~the Representatives acting in good faith. (b) Subsequent~~ you and counsel to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the ProspectusUnderwriters. (c) ~~The Representatives shall not have advised the Company that~~ Neither the Registration Statement or nor the Prospectus ~~contains~~ shall contain an untrue statement of fact ~~that~~which is material or shall omit to state a fact which, in ~~the reasonable and good faith opinion of the Representatives or counsel for the Underwriters~~your opinion, is material or ~~omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and~~ is required to be stated therein or is necessary to make the statements therein not misleading. (d) ~~The Representatives~~ At the Execution Time and at each Closing Date, you shall have received ~~opinions~~ a letter, dated the date of ~~Foley & Lardner~~delivery thereof, ~~special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary~~ of ~~the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii)~~ KPMG Peat Marwick LLP addressed to the ~~Representatives, as the representatives of~~ Company and the Underwriters, in form and ~~dated the First Closing Date or the Second Closing Date~~substance satisfactory to you, ~~as the case may be,~~ confirming that they are independent public accountants with respect to the Company within the meaning of the Securities Act and the applicable published Rules and stating in effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for In their opinion the financial statements and schedules examined by them and ~~other statistical or financial data~~ included ~~therein, as to which such counsel need express no opinion)~~ in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Securities Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificatepublished Rules; (ii) ~~The Commission has not issued an order preventing or suspending~~ In their opinion, the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending amounts under the ~~Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement~~ headings "Summary Consolidated Financial and ~~the Prospectus~~Operating Data", ~~and any amendment or supplement thereto~~"Dilution", including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set fo-19-

Appears in 1 contract

Sources: Underwriting Agreement (Bowlin Outdoor Advertising & Travel Centers Inc)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Debentures will be subject to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of the date hereof and as of each Closing Date~~Corporation herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Corporation made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Corporation of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Prospectus shall have been ~~declared effective~~ filed by the Corporation with the Commission ~~not later than 5:30 p.m., Washington, D.C. time, on~~ pursuant to Rule 424(b) within the ~~date of this Agreement, or such later~~ applicable time period prescribed for filing by the 1933 Act Regulations and ~~date as~~ in accordance herewith and each Permitted Free Writing Prospectus shall have been ~~consented to~~ filed by the ~~Representatives~~Corporation with the Commission within the applicable time periods prescribed for such filings by, ~~which consent shall be deemed~~ and otherwise in compliance with, Rule 433. (b) On or after the Applicable Time and prior to ~~have been given if~~ the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued by and no proceedings for that purpose or pursuant to Section 8A of the ~~Commission or any state securities commission nor~~1933 Act shall have been instituted or, to the knowledge of the ~~Company~~Corporation or you, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be threatened by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) ~~Subsequent~~ On or after the Applicable Time and prior to the ~~execution~~ Closing Date, the rating assigned by ▇▇▇▇▇’▇ Investors Service, Inc., S&P Global Ratings or Fitch Ratings, Inc. (or any of their successors) to any debt securities or preferred stock of the Corporation as of the date of this ~~Agreement,~~Agreement shall not have been lowered. (id) Since the respective most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus and up to the Closing Date, there shall not have ~~occurred~~ been any material adverse change in the condition of the Corporation, financial or ~~development involving~~otherwise, except as reflected in or ~~which could be reasonably expected~~ contemplated by the Pricing Disclosure Package and the Prospectus, and, since such dates and up to ~~involve~~the Closing Date, ~~a Material Adverse Effect, whether or~~ there shall not ~~arising from~~ have been any material transaction entered into by the Corporation other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which ~~on the Company,~~ in ~~any such case described in clause (i) or (ii) above,~~ your reasonable judgment is ~~in the reasonable and good faith opinion of the Representatives~~ so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Shares~~ Debentures on the terms and in the manner contemplated in by the ~~Registration Statement~~ Pricing Disclosure Package and the Prospectus. (ce) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives You shall have received ~~opinions~~ an opinion of ~~Foley & Lardner, special couns~~▇▇▇▇▇▇ ▇. ▇~~r the Company (as to the matters set forth below in subsections (i)~~▇▇▇▇ III, ~~(ii)~~Esq., ~~(vi), (viii), (ix) and (xiv)), and the Vice President,~~ Deputy General Counsel ~~and Secretary~~ of Duke Energy Business Services LLC, a service company subsidiary of the ~~Company (as to the matters set forth in subsections (iii)~~Corporation, ~~(iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and~~ dated the ~~First Closing Date or the Second~~ Closing Date~~, as the case may be~~, to the effect that: (i) ~~The Company~~ Each of Duke Energy Ohio, Inc., Progress Energy, Inc. and Piedmont Natural Gas Company, Inc., has been duly incorporated and is validly existing ~~as a corporation~~ in good standing under the laws of ~~Delaware, with full~~ the jurisdiction of its incorporation and has the respective corporate power and authority and foreign qualifications necessary to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate own its properties and to conduct its business as ~~presently conducted~~ described in the Pricing Disclosure Package and the Prospectus. Each of Duke Energy Carolinas, LLC, Duke Energy Florida, LLC, Duke Energy Indiana, LLC and Duke Energy Progress, LLC has been duly organized and is validly existing and in good standing as a limited liability company under the laws of the State of North Carolina, the State of Florida, the State of Indiana and the State of North Carolina, respectively, and has full limited liability company power and authority necessary to own its properties and to conduct its business as described in the ~~Prospectus~~ Pricing Disclosure Package and the ~~Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all~~ Prospectus. (ii) Each of the ~~issued~~ Corporation and ~~outstanding capital stock~~ the Principal Subsidiaries is duly qualified to do business in each jurisdiction in which the ownership or leasing of its property or the conduct of its business requires such qualification, except where the failure to so qualify, considering all such cases in the aggregate, does not have a material adverse effect on the business, properties, financial condition or results of operations of the ~~Significant Subsidiary;~~Corporation and its subsidiaries taken as a whole. (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (viiii) The Registration Statement ~~has become~~ became effective ~~under~~ upon filing with the Commission pursuant to Rule 462 of the 1933 Act Regulations, and, to the best of such counsel's ’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened by under the ~~Commission;~~ 1933 Act. (iv) The descriptions in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package and the Prospectus ~~and~~ of any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings ~~that~~ are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, accurate and ~~in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein,~~ fairly present the information ~~called for with respect~~ required to be shown, and such counsel does not know of any litigation or any legal ~~matters~~or governmental proceeding instituted or threatened against the Corporation or any of its Principal Subsidiaries or any of their respective properties that would be required to be disclosed in the Registration Statement, ~~documents~~ the Pricing Disclosure Package or the Prospectus and ~~proceedings;~~is not so disclosed. (ixv) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this This Agreement has been duly authorized, executed and delivered by ~~and on behalf of~~ the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD);Corporation. (xvi) The execution, delivery and performance by the Corporation of this Agreement by and the ~~Company will not: (A) violate any provisions~~ Indenture and the issue and sale of the ~~Articles of Incorporation~~ Debentures will not violate or ~~Bylaws of the Company or the Significant Subsidiary; (B) violate~~ contravene any of the provisions ofof the Certificate of Incorporation or By-Laws of the Corporation or any statute or any order, rule or regulation of which such counsel is aware of any court or governmental agency or body having jurisdiction over the Corporation or any of its Principal Subsidiaries or any of their respective property, nor will such action conflict with or result in a breach or violation of any of the ~~breach, modification~~ terms or ~~termination~~ provisions of, or constitute a default ~~under,~~ under any ~~agreement, lease, franchise, license,~~ indenture~~, permit~~, mortgage, deed of trust, ~~other evidence of indebtedness~~ loan agreement or other agreement or instrument known to such counsel to which the ~~Company~~ Corporation or ~~the Significant Subsidiary~~ any of its Principal Subsidiaries is a party or by which any of them or their respective property is bound or to which any of its property or assets is subject, which affects in a material way the ~~Company~~ Corporation’s ability to perform its obligations under this Agreement, the Indenture and the Debentures. (vii) The Indenture has been duly authorized, executed and delivered by the Corporation and, assuming the due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument of the Corporation, enforceable against the Corporation in accordance with its terms. (viii) The Debentures have been duly authorized, executed and issued by the Corporation and, when authenticated by the Trustee, in the manner provided in the Indenture and delivered against payment therefor, will constitute valid and legally binding obligations of the Corporation enforceable against the Corporation in accordance with their terms, and are entitled to the benefits afforded by the Indenture in accordance with the terms of the Indenture and the Debentures. (ix) No consent, approval, authorization, order, registration or ~~the Significant Subsidiary~~qualification is required to authorize, or ~~any~~ for the Corporation to consummate the transactions contemplated by this Agreement, except for such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of ~~their respective owned~~ the Debentures by the Underwriters and except as required in Condition No. 7.6 of the order of the North Carolina Utilities Commission dated September 29, 2016, in Docket Nos. E-7, Sub 1100, E-2, Sub 1095 and G-9, Sub 682, which consent has been obtained. Such counsel may state that his opinions in paragraphs (vii) and (viii) are subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or ~~leased property~~ affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is ~~bound, and which is filed~~ considered in a proceeding in equity or at law). Such counsel shall state that nothing has come to his attention that has caused him to believe that each document incorporated by reference ~~as an exhibit to~~ in the Registration Statement~~; or (C) violate any statute~~, ~~ordinance~~the Pricing Disclosure Package and the Prospectus, ~~order~~when filed, ~~rule~~was not, ~~decree or regulation of any court~~on its face, ~~regulatory or governmental body~~appropriately responsive, ~~arbitrator~~in all material respects, ~~administrative agency or other instrumentality~~ to the requirements of the ~~United States having jurisdiction over~~ 1934 Act and the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the 1934 Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amendedRegulations. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information nothing has come to his attention that ~~was developed in the course of the performance of such services, they have no reason~~ has caused him to believe that (i) the Registration ~~Statement~~ Statement, including ~~any document incorporated by reference therein~~the Rule 430B Information, on as of its effective ~~date~~date and at each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations, contained any untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package at the Applicable Time contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) that the ~~Prospectus,~~ Prospectus or any amendment or supplement ~~thereto including any document incorporated by reference therein~~thereto, as of ~~its issue date~~ their respective dates and ~~as of~~ at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not ~~misleading (~~misleading. Such counsel may also state that, except as otherwise expressly provided ~~that~~ in such ~~counsel need express no belief regarding~~ opinion, he does not assume any responsibility for the ~~financial~~ accuracy, completeness or fairness of the statements ~~and related schedules and other financial or statistical data~~ contained in or incorporated by reference into the Registration Statement, the Pricing Disclosure Package or the Prospectus and does not express any ~~amendment thereto including any document~~ opinion or belief as to (i) the financial statements or other financial and accounting data contained or incorporated by reference ~~therein~~therein or excluded therefrom, or including XBRL interactive data, (ii) the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention statement of the ~~attorneys~~ eligibility and qualification of the Trustee included in ~~such firm who have been involved in the preparation or review of~~ the Registration Statement (the “Form T-1”) or (iii) the information in the Prospectus under the caption “Book-Entry System.” In rendering the foregoing opinion, such counsel may state that ~~would give them actual current knowledge~~ he does not express any opinion concerning any law other than the law of the ~~existence or absence~~ State of ~~such matter in question. In rendering such opinion, counsel for the Company may rely~~North Carolina or, to the extent ~~counsel deems such reliance proper~~set forth in the foregoing opinions, the federal securities laws and may rely as to all matters of ~~fact upon certificates~~ the laws of the States of South Carolina, Ohio, Indiana and Florida on appropriate counsel reasonably satisfactory to the Representatives, which may include the Corporation’s other “in-house” counsel). Such counsel may also state that he has relied as to certain factual matters on information obtained from public officials, officers of the ~~Company~~ Corporation and ~~any governmental officials, and copies of all such certificates shall~~ other sources believed by him to be ~~furnished to the Representatives and for the Underwriters on or before each Closing Date~~responsible. (ef) ~~The Representatives~~ You shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, Hunton ▇▇▇▇▇▇▇ ▇▇▇▇~~sel and Secretary~~▇ LLP, of counsel to the ~~Company~~Corporation, ~~in their respective capacities as such~~dated the Closing Date, to the effect that: (i) The ~~representations~~ Corporation has been duly incorporated and ~~warranties~~ is a validly existing corporation in good standing under the laws of the ~~Company set forth in Section 2 hereof are true and correct as~~ State of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate;Delaware. (ii) The ~~Commission~~ Corporation has ~~not issued an order preventing or suspending~~ the ~~use of~~ corporate power and corporate authority to execute and deliver this Agreement and the ~~Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued;~~ Supplemental Indenture and to consummate the ~~knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction;~~transactions contemplated hereby. (iii) ~~Each~~ This Agreement has been duly authorized, executed and delivered by the Corporation. (iv) The Indenture has been duly authorized, executed and delivered by the Corporation and, assuming the due authorization, execution and delivery thereof by the Trustee, is a valid and binding agreement of the ~~respective signatories has examined~~ Corporation, enforceable against the ~~Registration Statement~~ Corporation in accordance with its terms. (v) The Debentures have been duly authorized and executed by the Corporation, and, when duly authenticated by the Trustee and issued and delivered by the Corporation against payment therefor in accordance with the terms of this Agreement and the Indenture, the Debentures will constitute valid and binding obligations of the Corporation, entitled to the benefits of the Indenture and enforceable against the Corporation in accordance with their terms. (vi) The statements set forth (i) under the caption “Description of Debt Securities” (other than under the caption “Global Securities”) that are included in the Base Prospectus and (ii) under the caption “Description of the Debentures” in the Pricing Disclosure Package and the Prospectus, insofar as such statements purport to summarize certain provisions of the Indenture and ~~any amendment or supplement thereto~~the Debentures, ~~including any documents filed~~ fairly summarize such provisions in all material respects. (vii) The statements set forth under the ~~Exchange Act and deemed to be incorporated by reference~~ caption “Material U.S. Federal Income Tax Considerations,” in the ~~Registration Statement~~Pricing Disclosure Package and the Prospectus, insofar as such statements purport to constitute summaries of matters of United States federal income tax law, constitute accurate and complete summaries, in all material respects, subject to the qualifications set forth therein. (viii) No Governmental Approval, which has not been obtained or taken and is not in full force and effect, is required to authorize, or is required for, the execution or delivery of this Agreement by the Corporation or the consummation by the Corporation of the transactions contemplated hereby, except for such ~~documents contain all statements~~ consents, approvals, authorizations, orders, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of ~~material fact~~ the Debentures by the Underwriters. “Governmental Approval” means any consent, approval, license, authorization or validation of, or filing, qualification or registration with, any Governmental Authority required to be ~~stated therein~~made or obtained by the Corporation pursuant to Applicable Laws, other than any consent, approval, license, authorization, validation, filing, qualification or registration that may have become applicable as a result of the involvement of any party (other than the Corporation) in the transactions contemplated by this Agreement or because of such parties’ legal or regulatory status or because of any other facts specifically pertaining to such parties and ~~do not include~~ “Governmental Authority” means any ~~untrue statement~~ court, regulatory body, administrative agency or governmental body of ~~a material fact~~ the State of North Carolina, the State of New York or ~~omit to state any material fact required to be stated therein~~ the State of Delaware or ~~necessary to make~~ the ~~statements therein not misleading~~United States of America having jurisdiction over the Corporation under Applicable Law but excluding the North Carolina Utilities Commission, the New York Public Service Commission and ~~since~~ the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set foDelaware Public Service Commission.

Appears in 1 contract

Sources: Underwriting Agreement (Duke Energy CORP)

Conditions of the Obligations of the Underwriters. The obligations of ------------------------------------------------- the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Certificates will be subject to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of the date hereof and as of each Closing Date~~Bank herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Bank made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Bank of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Prospectus and any supplements thereto shall have been ~~declared effective by~~ filed (if required) with the Commission ~~not later than 5:30 p.m., Washington, D.C. time, on~~ in accordance with the ~~date of this Agreement, or such later time~~ rules and date as shall have been consented to by the Representatives, which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A regulations under the Act ~~shall have been timely made;~~ and Section 1 hereof, and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Bank, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or by any authority administering any state securities ~~commission for inclusion of additional information in the Registration Statement,~~ or ~~otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faith~~blue sky law. (b) On or prior to the date of the Prospectus and on or prior to the Closing Date, the Underwriters shall have received a letter or letters, dated as of the date of the Prospectus and as of the Closing Date, respectively, of Coopers & ▇▇▇▇▇▇▇ L.L.P., Certified Public Accountants, substantially in the form of the drafts to which the Representative has previously agreed and otherwise in form and substance satisfactory to the Representative and its counsel. (c) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred (i) any ~~change or development involving~~change, or ~~which could be reasonably expected to involve~~any development involving a prospective change, ~~a Material Adverse Effect~~in or affecting particularly the business or properties of the Trust, ~~whether~~ or ~~not arising from transactions~~ the Bank which, in the ~~ordinary course~~ judgment of ~~business~~the Representative, ~~and~~ materially impairs the investment quality of the Certificates or makes it impractical or inadvisable to market the Certificates; (ii) any suspension or limitation on trading in securities generally on the ~~Company shall not have sustained~~ New York Stock Exchange or the National Association of Securities Dealers National Market system, or any ~~loss~~ setting of minimum prices for trading on such exchange or ~~interference from~~ market system; (iii) any ~~labor dispute~~suspension of trading of any securities of BANC ONE CORPORATION on any exchange or in the over-the-counter market which materially impairs the investment quality of the Certificates or makes it impractical or inadvisable to market the Certificates; (iv) any banking moratorium declared by Federal, ~~strike~~Delaware or New York authorities; or (v) any outbreak or escalation of major hostilities or armed conflict, ~~fire~~any declaration of war by Congress, ~~flood~~or any other substantial national or international calamity or emergency if, ~~windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect~~in the judgment of the Representative, the effect of ~~which on the Company, in~~ any such ~~case described in clause (i)~~ outbreak, escalation, declaration, calamity, or ~~(ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make~~ emergency makes it ~~impracticable~~ impractical or inadvisable to proceed with completion of the ~~public offering~~ sale of and payment for the Certificates. (d) At the Closing Date, the Bank shall have furnished to the Representative certificates of a vice president or more senior officer of the Bank as to the accuracy of the representations and warranties of the Bank herein at and as of the Closing Date, as to the performance by the Bank of all of its obligations hereunder to be performed at or prior to such Closing Date, and as to such other matters as the Representative may reasonably request. (e) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Associate General Counsel of First USA Bank, shall have furnished to the Representative her written opinion, addressed to the Representative and dated the Closing Date, in form and substance satisfactory to the Representative and its counsel, substantially to the effect that: (i) The Bank has been duly incorporated and is validly existing as a bank in good standing under the laws of the State of Delaware with full power and authority (corporate and other) to own its properties and conduct its business, as presently owned and conducted by it, and to enter into and perform its obligations under this Agreement, the Spread Account Agreement and the Pooling and Servicing Agreement (collectively referred to in this subsection (e) as the "Agreements"), and the Certificates and had at all times, and ---------- now has, the power, authority and legal right to acquire, own and transfer the Receivables; (ii) The Bank is duly qualified to do business and is in good standing, and under state laws, as they are currently interpreted and enforced, has obtained all necessary licenses and approvals in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would materially and adversely affect the enforceability of any Receivable by the Bank or the Trustee or would adversely affect the ability of the Bank to perform its obligations under the Agreements or the Certificates; (iii) The Certificates have been duly authorized, executed and delivered by the Bank and, when duly authenticated by the Trustee in accordance with the terms of the Pooling and Servicing Agreement and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be validly issued and outstanding and entitled to the benefits provided by the Pooling and Servicing Agreement; (iv) Each of the Agreements has been duly authorized, executed and delivered by the Bank and constitutes the legal, valid and binding agreement of the Bank enforceable against the Bank in accordance with its terms, subject, as to enforceability to (A) the effect of bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and other similar laws relating to or affecting the rights and remedies of creditors generally, and (B) the application of principles of equity (regardless of whether considered and applied in a proceeding in equity or at law) and the rights and powers of the FDIC; (v) The Trust is not now, and immediately following the sale of the Certificates pursuant to the Underwriting Agreement will not be, required to register under the 1940 Act; (vi) No consent, approval, authorization or order of any governmental agency or body is required for (A) the execution, delivery and performance by the Bank of its obligations under the Agreements or the Certificates, or (B) the issuance or sale of the Certificates, except such as have been obtained under the Act and as may be required under state securities or blue sky laws in connection with the purchase and distribution of the Certificates by the Underwriters and the filing of Uniform Commercial Code financing statements with respect to the Receivables and the approval of the Office of the State Bank Commissioner of the State of Delaware; (vii) To the best knowledge of such counsel, neither the execution and delivery of the ~~Shares on~~ Agreements or the Certificates by the Bank nor the performance by the Bank of the transactions therein contemplated nor the fulfillment of the terms thereof does or will result in any violation of any statute or regulation or any order or decree of any court or governmental authority binding upon the Bank or its property, or conflict with, or result in a breach or violation of any term or provision of, or result in a default under any of the terms and provisions of, the Bank's charter or by-laws or any material indenture, loan agreement or other material agreement to which the Bank is a party or by which the Bank is bound; (viii) To the knowledge of such counsel after due investigation, there are no legal or governmental proceedings pending to which the Bank is a party or to which the Bank is subject which, individually or in the ~~manner~~ aggregate (A) would have a material adverse effect on the ability of the Bank to perform its obligations under the Agreements or the Certificates, (B) assert the invalidity of the Agreements or the Certificates, (C) seek to prevent the issuance, sale or delivery of the Certificates or any of the transactions contemplated by the Agreements or (D) seek to affect adversely the federal income tax or ERISA attributes of the Certificates described in the Prospectus; (ix) The Registration Statement and the Prospectus (except for the financial statements, financial schedules and other financial and operating data included therein, as to which such counsel expresses no view) comply as to form with the Act and the Rules and Regulations; (x) The Registration Statement has become effective under the Act, and the Prospectus Supplement will be filed with the Commission pursuant to Rule 424(b) thereunder; and (xi) Such counsel has not independently verified and is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the information contained in the Registration Statement and Prospectus. Based upon discussion with the ~~Prospectus. (c) The Representatives shall not~~ Bank, its accountants and others, however, no facts have ~~advised the Company~~ come to its attention that cause it to believe that the ~~Registration Statement or~~ Prospectus (except for the financial statements, financial schedules and other financial and statistical data included therein, as to which such counsel expresses no view), contains an any untrue statement of a material fact ~~that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material~~ or omits to state a material fact ~~that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is~~ required to be stated therein or necessary in order to make the statements therein not misleading. (df) The ~~Representatives~~ Representative shall have received ~~opinions of Foley~~ a letter from ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ~~Lardner~~▇▇▇▇ LLP, special ~~couns~~counsel for the Bank, to the effect that the Representative may rely on those provisions of their opinions to ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") and Standard & Poor's Ratings ------- Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("Standard & Poor's") ----------------- with respect to certain matters relating to the transfer of the Receivables to the Trust, with respect to the perfection of the Trust's interest in the Receivables and with respect to other related matters. (g) The Representative shall have received an opinion of ▇▇~~r the Company (as~~ ▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the ~~matters set forth below in subsections (i)~~Bank, (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the ~~Representatives~~Representative, dated the Closing Date and satisfactory in form and substance to the Representative and its counsel, to the effect that the Certificates will be treated as ~~the representatives of~~ indebtedness for Federal income tax purposes and for Delaware income tax purposes. (h) The Representative shall have received from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, ~~and~~ such opinion or opinions, dated the ~~First Closing Date or the Second~~ Closing Date, ~~as the case may be,~~ substantially to the effect that: (i) ~~The Company~~ Each of the Pooling and Servicing Agreement and the Spread Account Agreement (collectively referred to in this subsection (h) as the "Agreements") constitutes the valid and binding obligation ---------- of the Bank, enforceable against the Bank in accordance with its terms, except (x) to the extent that the enforceability thereof may be limited by (a) bankruptcy, insolvency, receivership, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and the rights of creditors of Delaware chartered banks as the same may be applied in the event of the bankruptcy, insolvency, receivership, reorganization, moratorium or other similar event in respect of the Bank, (b) general principles of equity (regardless of whether enforceability is ~~validly existing~~ considered in a proceeding at law or in equity) and (c) the qualification that certain of the remedial provisions of the Agreements may be unenforceable in whole or in part, but the inclusion of such provisions does not affect the validity of the Agreements taken as a ~~corporation in good standing under the laws of Delaware~~whole, ~~with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus~~ and the ~~Registration Statement~~Agreements, together with applicable law, contain adequate provisions for the practical realization of the benefits of the security created thereby and (y) such counsel expresses no opinion as to the enforceability of any rights to contribution or indemnification which are violative of public policy underlying any law, rule or regulation; (ii) The ~~authorized capital stock~~ Certificates, when executed and authenticated in accordance with the terms of the ~~Company consists~~ Pooling and Servicing Agreement and delivered to and paid for by the Underwriters pursuant to this Agreement, will be duly and validly issued and outstanding and will be entitled to the benefits of ~~60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share,~~ the Pooling and ~~77,000,000 shares of preferred stock, $1.00 par value per share~~Servicing Agreement; (iii) ~~The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have~~ This Agreement has been duly ~~authorized~~ authorized, executed and ~~validly issued, are fully paid and nonassessable (except, to~~ delivered by the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rightsBank; (iv) ~~The Significant Subsidiary is validly existing as a corporation in good standing~~ Neither the execution, delivery or ~~active status under~~ performance by the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all Bank of the ~~issued~~ Agreements or this Agreement, nor the compliance by the Bank with the terms and ~~outstanding capital stock~~ provisions thereof or hereof, will contravene any provision of ~~the Significant Subsidiary~~any applicable law; (v) Based on such counsel's review of applicable laws, no governmental approval, which has not been obtained or taken and is not in full force and effect, is required to authorize or is required in connection with the execution, delivery or performance of the Agreements by the Bank; (vi) The ~~certificates for~~ Certificates, the ~~Shares~~ Agreements and this Agreement conform in all material respects to the descriptions thereof contained in the Prospectus; (vii) The Pooling and Servicing Agreement is not required to be ~~delivered hereunder conform~~ qualified under the Trust Indenture Act of 1939, as amended, and the Trust is not required to be registered under the 1940 Act; (viii) The statements in the Prospectus under the heading "Certain Legal Aspects of the Receivables", to the extent that they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct in all material respects; and (ix) Each of the Registration Statement, as of its effective date, and the Prospectus, as of its date, appeared on its face to be appropriately responsive in all material respects to the requirements of the ~~Delaware General Corporation Law~~ Act and the ~~rules~~ General Rules and ~~regulations of~~ Regulations under the ~~New York Stock Exchange; and when duly countersigned by the Company's transfer agent~~Act, ~~and delivered~~ except that in each case such counsel expresses no opinion as to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending therein or ~~threatened legal or governmental proceedings that are required to be described in the Registration Statement~~ excluded therefrom or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit exhibits to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and ~~that, although~~ such counsel ~~is not verifying, is not passing upon and~~ does not assume any responsibility for the accuracy, completeness or fairness of the statements contained ~~or incorporated by reference into~~ in the Registration Statement or and the Prospectus. Such opinion shall also state that such counsel has participated in conferences with officers and representatives of the Bank, counsel for the Bank, representatives of the independent accountants of the Bank and the Underwriters at which the contents of the Prospectus and related matters were discussed and, although such counsel need not pass upon, and need not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Prospectus and shall have made no independent check or verification thereof, except for those made under the caption "Certain Legal Aspects of the Receivables" to the extent set forth in paragraph (viii) above, on the basis of the ~~information~~ foregoing, no facts shall have come to such counsel's attention that ~~was developed in the course of the performance of~~ shall have led such ~~services, they have no reason~~ counsel to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus~~, or any amendment or supplement thereto including any document incorporated by reference therein~~, as of its ~~issue date and as of the Closing Date~~date, contained ~~or contains any~~ an untrue statement of a material fact or omitted ~~or omits~~ to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not ~~misleading (provided~~ misleading, except that such counsel need not express no an opinion or belief ~~regarding~~ with respect to the financial ~~statements and related~~ statements, schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information ~~has come to the attention of the attorneys~~ included in such ~~firm who have been involved in the preparation~~ Prospectus or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Dateexcluded therefrom. (ei) ~~The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the~~ ▇▇▇▇▇▇▇~~▇ters~~, ~~dated the First Closing Date or the Second Closing Date~~Woods, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ Battle & ▇▇▇▇▇▇~~▇▇▇ ▇▇▇ ▇▇ief Financial Officer~~, L.L.P., counsel for The Bank of New York, a New York banking corporation ("BONY"), in connection ---- with the Agency Agreement dated as of December 4, 1995 between BONY and the Trustee (the "Agency Agreement"), and ~~W. David Romoser~~counsel for the Trustee, ~~Vice President~~shall have ---------------- furnished to the Representative their written opinion, ~~▇▇▇▇▇▇▇ ▇▇▇▇sel~~ addressed to the Representative and ~~Secretary, of~~ dated the ~~Company~~Closing Date, in ~~their respective capacities as such~~form and substance satisfactory to the Representative and its counsel, substantially to the effect that: (i) ~~The representations~~ BONY is a banking corporation duly organized, validly existing and ~~warranties~~ in good standing under the laws of the ~~Company set forth in Section 2 hereof are true~~ State of New York and ~~correct as of~~ has the ~~date of this Agreement~~ corporate power and ~~as of~~ authority to execute, deliver and perform its obligations under the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificateAgency Agreement; (ii) ~~The Commission has not issued an order preventing or suspending~~ the ~~use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has~~ Certificates have been ~~issued; and~~ duly authenticated by BONY pursuant to the ~~knowledge of~~ Agency Agreement and in accordance with the ~~respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction~~Pooling and Servicing Agreement; (iii) ~~Each~~ the Trustee is a banking corporation duly organized, validly existing and in good standing under the laws of the ~~respective signatories~~ State of Delaware and has ~~examined~~ the ~~Registration Statement~~ corporate power and ~~the Prospectus~~authority to execute, deliver and ~~any amendment or supplement thereto, including any documents filed~~ perform its obligations under the ~~Exchange Act~~ Pooling and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set foServicing Agreement and

Appears in 1 contract

Sources: Underwriting Agreement (First Usa Credit Card Master Trust)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Bonds will be subject to the accuracy of the representations and warranties on the part of the Company ~~herein set forth as of the date hereof and as of each Closing Date~~herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Company made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Prospectus shall have been ~~declared effective~~ filed by the Company with the Commission ~~not later than 5:30 p.m.~~pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the 1933 Act Regulations, ~~Washington, D.C. time, on the date of this Agreement, or such later time~~ and ~~date as~~ each Permitted Free Writing Prospectus shall have been ~~consented to~~ filed by the ~~Representatives, which consent shall be deemed to have been given if~~ Company with the ~~Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives~~ Commission pursuant to Rule ~~461 under~~ 433 within the ~~Act; all filings required~~ applicable time period prescribed for such filing by ~~Rules 424(b~~the 1933 Act Regulations (to the extent so required). (b) On or after the Applicable Time and ~~430A under~~ prior to the ~~Act shall have been timely made;~~ Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued by and no proceedings for that purpose or pursuant to Section 8A of the ~~Commission or any state securities commission nor~~1933 Act shall have been instituted or, to the knowledge of the ~~Company~~Company or you, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be threatened by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) ~~Subsequent~~ On or after the Applicable Time and prior to the ~~execution~~ Closing Date, the rating assigned by ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Ratings Services (or any of their successors) to any debt securities or preferred stock of the Company as of the date of this ~~Agreement,~~Agreement shall not have been lowered. (id) Since the respective most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus and up to the Closing Date, there shall not have ~~occurred~~ been any material adverse change in the condition of the Company and its subsidiary, taken as a whole, financial or ~~development involving~~otherwise, except as reflected in or ~~which could be reasonably expected~~ contemplated by the Pricing Disclosure Package and the Prospectus, and since such dates and up to ~~involve~~the Closing Date, ~~a Material Adverse Effect, whether or~~ there shall not ~~arising from~~ have been any material transaction entered into by the Company other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which ~~on the Company,~~ in ~~any such case described in clause (i) or (ii) above,~~ your reasonable judgment is ~~in the reasonable and good faith opinion of the Representatives~~ so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Shares~~ Bonds on the terms and in the manner contemplated in by the ~~Registration Statement~~ Pricing Disclosure Package and the Prospectus. (ce) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives You shall have received ~~opinions~~ an opinion of ~~Foley & Lardner, special couns~~J. ▇▇▇▇▇▇▇ ▇▇~~r the Company (as to the matters set forth below in subsections (i)~~▇▇▇▇, ~~(ii)~~Esq., ~~(vi), (viii), (ix) and (xiv)), and the Vice President,~~ Associate General Counsel ~~and Secretary~~ of Duke Energy Business Services LLC, the service company affiliate of the ~~Company (as to the matters set forth in subsections (iii)~~Company, ~~(iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and~~ dated the ~~First Closing Date or the Second~~ Closing Date~~, as the case may be~~, to the effect that: (i) The Company is a corporation duly organized and validly existing ~~as a corporation~~ in good standing under the laws of ~~Delaware~~the State of Indiana, with ~~full corporate~~ power and authority (corporate and other) to ~~own, lease and operate~~ own its properties and conduct its business as ~~presently conducted and as~~ described in the Pricing Disclosure Package and the Prospectus and ~~the Registration Statement;~~to enter into and perform its obligations under this Agreement. (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been Company’s sole subsidiary is a corporation duly ~~authorized~~ organized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing ~~as a corporation~~ in good standing ~~or active status~~ under the laws of ~~Tennessee, with full~~ Indiana and has due corporate ~~power~~ and governmental authority to ~~own~~carry on the business in which it is engaged, ~~lease and operate its properties and to conduct its business as presently conducted and as described~~ except where the failure would not, singularly or in the ~~Prospectus and~~ aggregate, reasonably be expected to have a material adverse effect on the ~~Registration Statement; to such counsel's knowledge~~consolidated financial position, ~~the Company owns directly~~ stockholder’s equity, results of operations, business or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement prospects of the Company ~~enforceable against the Company in accordance with~~ and its ~~terms~~subsidiary, ~~except that rights to indemnity or contribution hereunder may be limited by applicable law and except~~ taken as ~~to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally~~a whole, and ~~by equitable principles limiting~~ to own and operate the ~~right to specific performance or other equitable relief; and, to~~ properties in use in such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD);business. (xiii) The execution, delivery and performance of this ~~Agreement~~ Agreement, the First Mortgage Indenture and the Bonds and compliance by the Company with its obligations hereunder and thereunder (x) will ~~not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of~~not conflict with, or result in any charge or encumbrance upon any of the ~~breach, modification or termination~~ assets of the Company (other than pursuant to the First Mortgage Indenture) pursuant to the terms of, or constitute a default under, any agreement, ~~lease~~indenture or instrument known to such counsel, ~~franchise, license, indenture, permit, mortgage, deed~~ or result in a violation of ~~trust, other evidence~~ the Articles or By-Laws of ~~indebtedness or other instrument to which~~ the Company or (as in effect on the ~~Significant Subsidiary is a party or by which the Company or the Significant Subsidiary,~~ Closing Date) or any ~~of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance,~~ order, ~~rule, decree~~ rule or regulation (also as in effect on the Closing Date) of any ~~court, regulatory~~ court or governmental ~~body, arbitrator, administrative~~ agency ~~or other instrumentality of the United States~~ having jurisdiction over the Company and (y) the issuance of the Bonds in accordance with the First Mortgage Indenture and the sale of the Bonds in accordance with this Agreement, do not and will not result in any violation by the Company of any of the terms or provisions of the ~~Significant Subsidiary (assuming compliance with all applicable federal and state securities laws);~~Articles or By-Laws, or of the First Mortgage Indenture, or any mortgage or other agreement or instrument known to such counsel by which the Company is bound. (xiiv) ~~To such counsel's knowledge~~The First Mortgage Indenture is in due and proper form, ~~there are no holders of Common Stock or other securities~~ has been duly and validly authorized by all necessary corporate action, has been duly executed and delivered by the Company, qualified under the 1939 Act, and, assuming due authorization, execution and delivery by the Trustee, the First Mortgage Indenture is a valid and binding instrument of the Company, enforceable in accordance with its terms, except as (i) the enforceability thereof may be limited by bankruptcy, insolvency, or ~~securities that are convertible or exchangeable into Common Stock or other securities~~ similar laws affecting creditors’ rights generally, and (ii) the rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. (v) The issue of the Bonds by the Company in accordance with the terms of the First Mortgage Indenture has been duly authorized by all necessary corporate action; when duly executed by the Company, ~~that have rights~~ authenticated by the Trustee and delivered to and paid for by the Underwriters pursuant to this Agreement, the Bonds will constitute the legal, valid and binding obligations of the Company enforceable in accordance with their terms, secured by the lien of and entitled to the ~~registration~~ benefits provided by the First Mortgage Indenture, except as (i) the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting creditors’ rights generally, and (ii) the rights of ~~such securities under~~ acceleration and the ~~Act or any Blue Sky Laws;~~availability of equitable remedies may be limited by equitable principles of general applicability. (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xivvi) The Company is has good and marketable title to the properties, rights and assets described in and conveyed by the First Mortgage Indenture and not ~~an "investment company,"~~ released by the Trustee from the lien thereof prior to the time of delivery of the Bonds, subject only to the lien of the First Mortgage Indenture, to “permitted liens” as ~~such term is~~ defined in the ~~Investment~~ First Mortgage Indenture and to certain encumbrances and defects in respect of certain properties in service the aggregate book value of which is not deemed material; the description in the First Mortgage Indenture of such properties, rights and assets is adequate to constitute the First Mortgage Indenture a lien thereon; the First Mortgage Indenture, subject only to the matters referred to above, constitutes a valid and direct first lien on such properties, rights and assets, which include substantially all permanent fixed properties and franchises of the Company ~~Act~~ (except that real estate which is not used or useful in the public utility business of ~~1940~~the Company is excluded from the lien of the First Mortgage Indenture by the provisions thereof); and all permanent fixed properties and franchises acquired by the Company subsequent to the time of issuance of the Bonds (except that in certain cases real estate which is not used or useful in the public utility business of the Company is excluded from the lien of the First Mortgage Indenture by the provisions thereof) will be subject to the lien of the First Mortgage Indenture, subject, however, to “permitted liens” as ~~amended. Such counsel shall also state that they have participated~~ defined in ~~conferences with officers~~ the First Mortgage Indenture and liens, if any, existing or placed on such properties at the time of acquisition thereof by the Company. (vii) The First Mortgage Indenture, other ~~representatives~~ than the Sixty-Second Supplemental Indenture, has been duly filed for record in such manner and in such places as are required by law in order to give constructive notice of, and to establish, preserve and protect the lien of, the First Mortgage Indenture on all property of the Company of every kind referred to in the First Mortgage Indenture as subject to the lien thereof. (viii) Except as referred to in the Pricing Disclosure Package and the Prospectus, there is no action, suit or proceeding, inquiry or investigation, at law or in equity or before or by any court, public board or body, pending or, to such counsel’s knowledge, threatened against or affecting the Company, ~~representatives~~ wherein an unfavorable decision, ruling or finding would (i) materially and adversely affect the condition (financial or otherwise), results of ~~auditors for~~ operations, business or properties of the Company or (ii) materially and ~~representatives~~ adversely affect the transactions contemplated by this Agreement, or which would adversely affect the validity or enforceability of the ~~Underwriters and their counsel during which~~ First Mortgage Indenture or the ~~content of~~ Bonds. The descriptions in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package and the Prospectus of any legal or governmental proceedings are accurate and ~~related matters were discussed and reviewed~~fairly present the information required to be shown, and ~~that, although~~ such counsel does not know of any litigation or any legal or governmental proceeding instituted or threatened against the Company or any of its properties that would be required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus and is not ~~verifying~~so disclosed. (ix) An order of the IURC relating to the issuance of the Bonds has been duly entered and, to such counsel’s knowledge, has not been modified or repealed in any respect and is ~~not passing upon~~ in full force and ~~does not assume~~ effect. The issuance and sale of the Bonds to the Underwriters are in conformity with the terms of such order. Except as may be required under the 1933 Act or the securities or Blue Sky laws of any ~~responsibility~~ jurisdiction, no further consent, approval, authorization or order of, or registration or filing with, any court or governmental or public agency, authority or body is required with respect to the Company for the ~~accuracy~~execution, ~~completeness~~ delivery and performance of this Agreement, the First Mortgage Indenture or ~~fairness~~ the Bonds, the issuance by the Company of the ~~statements contained or incorporated by reference into the Registration Statement~~ Bonds or the ~~Prospectus, on~~ consummation by the ~~basis~~ Company of the ~~information~~ transactions contemplated by this Agreement, the First Mortgage Indenture or the Bonds. In addition, such counsel shall state that ~~was developed in the course of the performance of~~ no facts have come to such ~~services, they~~ counsel’s attention that have ~~no reason~~ caused such counsel to believe that the Registration ~~Statement including any document incorporated by reference therein~~Statement, ~~on its effective date~~at the Applicable Time, contained ~~any~~ an untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, ~~or any amendment or supplement thereto including any document incorporated by reference therein,~~ as of its ~~issue~~ date and as of the Closing Date, contained or contains ~~any~~ an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (~~provided~~ except that in each case such counsel need not express an opinion as to the financial statements and other financial data included or incorporated by reference therein or excluded therefrom). Such counsel shall further state that, in addition, no facts have come to such counsel’s attention that have caused such counsel to believe that the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that such counsel need not express ~~no belief regarding~~ an opinion as to the financial statements and ~~related schedules and~~ other financial data included or ~~statistical data contained in the Registration Statement, any amendment thereto including any document~~ incorporated by reference ~~therein,~~ therein or ~~the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein~~excluded therefrom). To Such counsel shall expressly authorize the ~~extent that any of such opinions are stated~~ Underwriters to ~~be based upon~~ rely on such counsel~~'s knowledge or to be given "~~’s opinion dated the Closing Date delivered to the ~~knowledge of such counsel," such qualification shall signify that no information has come~~ Trustee pursuant to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing DateFirst Mortgage Indenture. (ef) ~~The Representatives~~ You shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇~~sel and Secretary~~▇ ▇▇▇▇ LLC, of counsel to the Company, ~~in their respective capacities as such~~dated the Closing Date, to the effect that: (i) The ~~representations~~ Sixty-Second Supplemental Indenture has been duly authorized, executed and ~~warranties~~ delivered by the Company, and assuming due authorization, execution and delivery by the Trustee, the First Mortgage Indenture is a valid and binding instrument of the Company ~~set forth~~ enforceable in ~~Section 2 hereof are true and correct~~ accordance with its terms, except as of (i) the ~~date of this Agreement and as of the date of such certificate~~enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally, and (ii) the ~~Company has complied in all material respects with all~~ rights of acceleration and the ~~agreements and satisfied all the conditions to~~ availability of equitable remedies may be ~~performed or satisfied~~ limited by ~~it at or prior to the date~~ equitable principles of ~~such certificate;~~general applicability. (ii) The ~~Commission has not issued an order preventing or suspending~~ Bonds have been duly authorized, and when duly executed by the ~~use~~ Company, authenticated by the Trustee and delivered to and paid for by the Underwriters pursuant to this Agreement, will be valid and binding obligations of the ~~Prospectus~~ Company enforceable in accordance with their terms, except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or ~~any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending~~ similar laws affecting creditors’ rights generally and (ii) the ~~effectiveness~~ rights of acceleration and the ~~Registration Statement has been issued; and to the knowledge~~ availability of ~~the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws~~ equitable remedies may be limited by equitable principles of ~~any jurisdiction;~~general applicability. (iii) ~~Each~~ This Agreement has been duly authorized, executed and delivered by the Company. (iv) The statements made in the Preliminary Prospectus and the Prospectus under the captions “Description of the ~~respective signatories has examined~~ Mortgage Bonds” and “Certain U.S. Federal Income Tax Considerations for Non-U.S. Holders,” and in the ~~Registration Statement~~ Base Prospectus under the caption “Description of the First Mortgage Bonds,” in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, accurately and fairly summarize the matters referred to therein in all material respects. (v) The Company is not, and solely after giving effect to the offering and sale of the Bonds and the application of the proceeds thereof as described in the Prospectus, will not be subject to registration and ~~any amendment~~ regulation as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended. In rendering the foregoing opinions, such counsel may state that it has relied as to certain factual matters on information obtained from public officials, officers and representatives of the Company and has assumed that the signatures on all documents examined by it are genuine, and that such counsel has not independently verified such factual matters or ~~supplement thereto~~assumptions. In addition, ~~including any~~ such counsel may assume matters governed by New York law. You shall also have received a statement of ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ LLC, dated the Closing Date, to the effect that: (1) no facts have come to such counsel’s attention that have caused such counsel to believe that the documents filed by the Company under the ~~Exchange~~ 1934 Act and ~~deemed to be~~ the 1934 Act Regulations that are incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, were not, on their face, appropriately responsive in all material respects to the requirements of the 1934 Act and the 1934 Act Regulations (except that in each case such ~~documents contain all statements~~ counsel need not express any view as to the financial statements, schedules and other financial information included or incorporated by reference therein or excluded therefrom or the Form T-1); (2) the Registration Statement, at the Applicable Time and the Prospectus, as of ~~material fact required~~ its date, appeared on their face to be ~~stated therein~~appropriately responsive in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations (except that in each case such counsel need not express any view as to the financial statements, schedules and ~~do not include any~~ other financial information included or incorporated by reference therein or excluded therefrom or the Form T-1); and (3) no facts have come to such counsel’s attention that have caused such counsel to believe that the Registration Statement, at the Applicable Time, contained an untrue statement of a material fact or ~~omit~~ omitted to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of its date and ~~since~~ as of the ~~date on which the Registration Statement was initially filed~~Closing Date, ~~no event has occurred that was required~~ contained or contains an untrue statement of a material fact or omitted or omits to ~~be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set fo~~state a material fact necessary

Appears in 1 contract

Sources: Underwriting Agreement (Duke Energy Indiana, Inc.)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall be~~ to purchase and pay for the Underwritten Shares on the First Time of Delivery or the Option Shares on the Option Time of Delivery, and the obligations of the Forward Sellers to deliver and sell the Borrowed Underwritten Shares on the First Time of Delivery or the Borrowed Option Shares on the Option Time of Delivery, as the case may be, are subject to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of the date hereof and as of each Closing Date~~Corporation herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Corporation made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Corporation of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Prospectus shall have been ~~declared effective~~ filed by the Corporation with the Commission ~~not later than 5:30 p.m., Washington, D.C. time, on~~ pursuant to Rule 424(b) within the ~~date of this Agreement, or such later~~ applicable time period prescribed for filing by the 1933 Act Regulations and ~~date as~~ in accordance herewith and any Permitted Free Writing Prospectus shall have been ~~consented to~~ filed by the ~~Representatives~~Corporation with the Commission within the applicable time periods prescribed for such filings by, ~~which consent shall be deemed~~ and otherwise in compliance with, Rule 433. (b) On or after the Applicable Time and prior to ~~have been given if the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf~~ such Time of ~~the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made;~~ Delivery, no stop order suspending the effectiveness of the Registration Statement shall have been issued by and no proceedings for that purpose or pursuant to Section 8A of the ~~Commission or any state securities commission nor~~1933 Act shall have been instituted or, to the knowledge of the ~~Company~~Corporation or you, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be threatened by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) ~~Subsequent~~ On or after the Applicable Time and prior to such Time of Delivery, the ~~execution~~ rating assigned by ▇▇▇▇▇’▇ Investors Service, Inc., S&P Global Ratings Services or Fitch Ratings, Inc. (or any of their successors) to any debt securities or preferred stock of the Corporation as of the date of this ~~Agreement,~~Agreement shall not have been lowered. (id) Since the respective most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus and up to such Time of Delivery, there shall not have ~~occurred~~ been any material adverse change in the condition of the Corporation, financial or ~~development involving~~otherwise, except as reflected in or ~~which could be reasonably expected~~ contemplated by the Pricing Disclosure Package and the Prospectus, and, since such dates and up to ~~involve~~such Time of Delivery, ~~a Material Adverse Effect, whether or~~ there shall not ~~arising from~~ have been any material transaction entered into by the Corporation other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which ~~on the Company,~~ in ~~any such case described in clause (i) or (ii) above,~~ your reasonable judgment is ~~in the reasonable and good faith opinion of the Representatives~~ so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in by the ~~Registration Statement~~ Pricing Disclosure Package and the Prospectus. (ce) The ~~Representatives shall not have advised~~ Representatives, the ~~Company that~~ Forward Purchasers and the ~~Registration Statement or Prospectus contains an untrue statement of fact that~~Forward Sellers, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives shall have received ~~opinions~~ an opinion of ~~Foley & Lardner, special couns~~▇▇▇▇▇▇ ▇. ▇~~r the Company (as to the matters set forth below in subsections (i)~~▇▇▇▇ III, ~~(ii)~~Esq., ~~(vi), (viii), (ix) and (xiv)), and the Vice President,~~ Deputy General Counsel ~~and Secretary~~ of Duke Energy Business Services LLC, a service company subsidiary of the ~~Company (as to the matters set forth in subsections (iii)~~Corporation, ~~(iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives~~ dated such Time of ~~the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be~~Delivery, to the effect that: (i) ~~The Company~~ Each of Duke Energy Ohio, Inc., Progress Energy, Inc., and Piedmont Natural Gas Company, Inc. has been duly incorporated and is validly existing ~~as a corporation~~ in good standing under the laws of ~~Delaware, with full~~ the jurisdiction of its incorporation and has the respective corporate power and authority and foreign qualifications necessary to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate own its properties and to conduct its business as ~~presently conducted~~ described in the Pricing Disclosure Package and the Prospectus. Each of Duke Energy Carolinas, LLC, Duke Energy Florida, LLC, Duke Energy Indiana, LLC and Duke Energy Progress, LLC has been duly organized and is validly existing and in good standing as a limited liability company under the laws of the State of North Carolina, the State of Florida, the State of Indiana and the State of North Carolina, respectively, and has full limited liability company power and authority necessary to own its properties and to conduct its business as described in the ~~Prospectus~~ Pricing Disclosure Package and the ~~Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all~~ Prospectus. (ii) Each of the ~~issued~~ Corporation and ~~outstanding capital stock~~ the Principal Subsidiaries is duly qualified to do business in each jurisdiction in which the ownership or leasing of its property or the conduct of its business requires such qualification, except where the failure to so qualify, considering all such cases in the aggregate, does not have a material adverse effect on the business, properties, financial condition or results of operations of the ~~Significant Subsidiary;~~Corporation and its subsidiaries taken as a whole. (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (viiii) The Registration Statement ~~has become~~ became effective ~~under~~ upon filing with the Commission pursuant to Rule 462 of the 1933 Act Regulations, and, to the best of such counsel's ’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened by under the ~~Commission;~~ 1933 Act. (iv) The descriptions in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package and the Prospectus ~~and~~ of any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings ~~that~~ are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, accurate and ~~in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein,~~ fairly present the information ~~called for with respect~~ required to be shown, and such counsel does not know of any litigation or any legal ~~matters~~or governmental proceeding instituted or threatened against the Corporation or any of its Principal Subsidiaries or any of their respective properties that would be required to be disclosed in the Registration Statement, ~~documents~~ the Pricing Disclosure Package or the Prospectus and ~~proceedings;~~is not so disclosed. (ixv) ~~The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder~~ This Agreement and the ~~consummation of~~ Forward Sale Agreements have been, and the ~~transactions described herein have been~~ Additional Forward Sale Agreements, if any, will be, duly ~~authorized by the Company by all necessary corporate action and this Agreement has been duly~~ authorized, executed and delivered by ~~and on behalf of~~ the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD);Corporation. (xvi) The execution, delivery and performance by the Corporation of this ~~Agreement~~ Agreement, the Forward Sale Agreements and the Additional Forward Sale Agreements, if any, and the consummation by the ~~Company will not: (A) violate any provisions~~ Corporation of the ~~Articles of Incorporation or Bylaws~~ transactions contemplated hereby and thereby, including the issuance and sale of the ~~Company~~ Corporation Shares, if any, to be issued and sold by the Corporation hereunder, will not violate or ~~the Significant Subsidiary; (B) violate~~ contravene any of the provisions ofof the Certificate of Incorporation or By-Laws of the Corporation or any statute or any order, rule or regulation of which such counsel is aware of any court or governmental agency or body having jurisdiction over the Corporation or any of its Principal Subsidiaries or any of their respective property, nor will such action conflict with or result in a breach or violation of any of the ~~breach, modification~~ terms or ~~termination~~ provisions of, or constitute a default ~~under,~~ under any ~~agreement, lease, franchise, license,~~ indenture~~, permit~~, mortgage, deed of trust, ~~other evidence of indebtedness~~ loan agreement or other agreement or instrument known to such counsel to which the ~~Company~~ Corporation or ~~the Significant Subsidiary~~ any of its Principal Subsidiaries is a party or by which any of them or their respective property is bound or to which any of its property or assets is subject which affects in a material way the ~~Company~~ Corporation’s ability to perform its obligations under this Agreement, the Forward Sale Agreements and the Additional Forward Sale Agreements, if any. (vii) No consent, approval, authorization, order, registration or qualification is required to authorize, or for the Corporation to consummate the transactions contemplated by this Agreement, the Forward Sale Agreements and the Additional Forward Sale Agreements, if any, except for such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters, the Forward Sellers and the Forward Purchasers and except as required in (i) Condition 7.6 of the order of the North Carolina Utilities Commission dated September 29, 2016, in Docket Nos. E-7, Sub 1100, E-2, Sub 1095, and G-9, Sub 682 and (ii) Condition 7.6(b) of the orders of the Public Service Commission of South Carolina dated July 11, 2012 and November 2, 2016, in Docket No. 2011-158-E, which conditions have been complied with. (viii) The Corporation Shares, if any, to be issued and sold by the Corporation hereunder have been duly authorized, and, upon payment and delivery in accordance with this Agreement, such Corporation Shares will be validly issued, fully paid and nonassessable; none of the Shares are subject to preemptive rights of any security holder of the Corporation; and the Shares conform as to legal matters in all material respects to the description thereof in the Prospectus under the caption “Description of Capital Stock.” A number of shares of Common Stock equal to 1.5 times the aggregate Full Number of Shares for all Forward Sale Agreements and Additional Forward Sale Agreements, if any, have been duly authorized in connection with any share settlement obligations under the Forward Sale Agreements and the Additional Forward Sale Agreements, if any (including in upon Physical Settlement or Net Share Settlement (as such terms are defined in the Forward Sale Agreements or Additional Forward Sale Agreements, as applicable)) and, when any such shares of Common Stock are issued and delivered by the Corporation to a Forward Purchaser pursuant to the terms of the relevant Forward Sale Agreement or the ~~Significant Subsidiary~~relevant Additional Forward Sale Agreement, ~~or any~~ as applicable, such shares of ~~their respective owned or leased property is bound~~Common Stock will be validly issued, fully paid and ~~which is filed or~~ nonassessable (subject to customary exceptions, limitations and qualifications). Such counsel shall state that nothing has come to his attention that has caused him to believe that each document incorporated by reference ~~as an exhibit to~~ in the Registration Statement~~; or (C) violate any statute~~, ~~ordinance~~the Pricing Disclosure Package and the Prospectus, ~~order~~when filed, ~~rule~~was not, ~~decree or regulation of any court~~on its face, ~~regulatory or governmental body~~appropriately responsive, ~~arbitrator~~in all material respects, ~~administrative agency or other instrumentality~~ to the requirements of the ~~United States having jurisdiction over~~ 1934 Act and the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the 1934 Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amendedRegulations. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information nothing has come to his attention that ~~was developed in the course of the performance of such services, they have no reason~~ has caused him to believe that (i) the Registration ~~Statement~~ Statement, including ~~any document incorporated by reference therein~~the Rule 430B Information, on as of its effective ~~date~~date and at each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations, contained any untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package at the Applicable Time contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) that the ~~Prospectus,~~ Prospectus or any amendment or supplement ~~thereto including any document incorporated by reference therein~~thereto, as of ~~its issue date~~ their respective dates and as at such Time of ~~the Closing Date~~Delivery, contained or contains any untrue statement of a material fact or omitted or omits to state a any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not ~~misleading (~~misleading. Such counsel may also state that, except as otherwise expressly provided ~~that~~ in such ~~counsel need express no belief regarding~~ opinion, he does not assume any responsibility for the ~~financial~~ accuracy, completeness or fairness of the statements ~~and related schedules and other financial or statistical data~~ contained in or incorporated by reference into the Registration Statement, the Pricing Disclosure Package or the Prospectus and does not express any ~~amendment thereto including any document~~ opinion or belief as to (i) the financial statements or other financial and accounting data contained or incorporated by reference ~~therein~~therein or excluded therefrom, including XBRL interactive data or (ii) the ~~Prospectus~~information in the Prospectus under the caption “Book-Entry System.” In rendering the foregoing opinion, or such counsel may state that he does not express any ~~amendment or supplement thereto including~~ opinion concerning any ~~document incorporated by reference therein). To~~ law other than the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention law of the ~~attorneys in such firm who have been involved in the preparation or review~~ State of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may relyNorth Carolina or, to the extent ~~counsel deems such reliance proper~~set forth in the foregoing opinions, the federal securities laws and may rely as to all matters of ~~fact upon certificates~~ the laws of the States of South Carolina, Ohio, Indiana and Florida on appropriate counsel reasonably satisfactory to the Representatives, which may include the Corporation’s other “in-house” counsel). Such counsel may also state that he has relied as to certain factual matters on information obtained from public officials, officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement Corporation and other ~~related matters as the Representatives may reasonably require, and the Company shall have furnished~~ sources believed by him to ~~such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters~~be responsible. (f) The ~~Representatives~~ Representatives, the Forward Purchasers and the Forward Sellers, shall have received ~~on each Closing Date, a certificate~~ an opinion or opinions of ~~Kenneth W. Krueger, Senior Vic▇ ▇~~Hunton & ▇▇▇▇▇▇▇▇ ~~▇▇▇ ▇▇ief Financial Officer~~LLP, ~~and W. David Romoser~~counsel to the Corporation, ~~Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary,~~ dated such Time of ~~the Company, in their respective capacities as such~~Delivery, to the effect that: (i) ~~The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this~~ This Agreement and ~~as of~~ the ~~date of such certificate~~Forward Sale Agreements have been, and each Additional Forward Sale Agreement, if any, will be, duly authorized, executed and delivered by the ~~Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate;~~Corporation. (ii) ~~The Commission has not issued an order preventing or suspending~~ This Agreement and the ~~use~~ Forward Sale Agreements are, and each Additional Forward Sale Agreement, if any, will be, valid and binding agreements of the ~~Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending~~ Corporation, enforceable against the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction;Corporation in accordance with their terms. (iii) ~~Each~~ The execution and delivery by the Corporation of this Agreement, the Forward Sale Agreements and the Additional Forward Sale Agreements, if any, and the consummation by the Corporation of the ~~respective signatories has examined~~ transactions contemplated hereby and thereby, including the ~~Registration Statement~~ issuance and sale of the Corporation Shares, if any, to be issued and sold by the Corporation hereunder, will not (i) conflict with the Corporation’s Certificate of Incorporation or By-Laws, (ii) constitute a violation of, or a breach of or default under, the terms of any of the contracts set forth on Schedule IV hereto or (iii) violate or conflict with, or result in any contravention of, any Applicable Law. “Applicable Law” means the General Corporation Law of the State of Delaware and those laws, rules and regulations of the States of New York and North Carolina and those federal laws, rules and regulations of the United States of America, in each case that, in such counsel’s experience, are normally applicable to transactions of the type contemplated by this Agreement (other than the United States federal securities laws, state securities or blue sky laws, antifraud laws and the ~~Prospectus~~rules and regulations of the Financial Industry Regulatory Authority, Inc., the North Carolina Public Utilities Act, the rules and regulations of the North Carolina Utilities Commission and the New York State Public Service Commission and the New York State Public Service Law), but without our having made any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment special investigation as to the ~~Registration Statement that has not been so set fo~~applicability of any specific law, rule or regulation.

Appears in 1 contract

Sources: Underwriting Agreement (Duke Energy CORP)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Notes on the Closing Date will be subject to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of~~ ▇▇.▇▇▇▇▇▇ Parties and the ~~date hereof and as of each Closing Date~~Issuer Trustee herein, to the accuracy of the statements of officers of the ~~Company's officers~~ ▇▇.▇▇▇▇▇▇ Parties and the Issuer Trustee made pursuant to the provisions hereof, to the performance ~~in all material respects by~~ of the ~~Company~~ ▇▇.▇▇▇▇▇▇ Parties and the Issuer Trustee of ~~its~~ their obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The Registration Statement shall have ~~been declared~~ become effective, or if a post-effective by amendment is required to be filed under the ~~Commission~~ Securities Act, such post-effective amendment shall have become effective, not later than ~~5:30 p.m.~~5:00 P.M., ~~Washington, D.C.~~ New York City time, on the date ~~of this Agreement,~~ hereof or on such later ~~time~~ date to which you have consented; and date as shall have been consented to by the Representatives, which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission. The Prospectus, including all price-related information previously omitted from the prospectus which formed a part of the Registration Statement at the time it became effective, in accordance with Rule 430A, shall have been ~~issued~~ transmitted to the Commission for filing pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the ~~Commission or any state securities commission nor,~~ rules and regulations under the Securities Act and in accordance with Section 5.1.(a) hereof; and prior to the ~~knowledge~~ Closing Date the Trust Manager shall have provided evidence satisfactory to the Representative of ~~the Company~~such timely filing, ~~shall any proceedings~~ and all requests for ~~that purpose have been instituted or threatened; and any request of the Commission or any state securities commission for inclusion of~~ additional information ~~in the Registration Statement, or otherwise,~~ shall have been complied with to the ~~reasonable~~ satisfaction of the ~~Representatives acting in good faith~~Representative. (b) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) any change, or any development or event involving a prospective change, in the condition (~~ii) above~~financial or other), business, properties or results of operations of any of the ▇▇.▇▇▇▇▇▇ Parties, the Issuer Trustee or any Swap Party and their respective subsidiaries, in each case, taken as one enterprise, which, in the judgment of a majority in interest of the Underwriters including the Representative, is ~~in the reasonable and good faith opinion of the Representatives so~~ material and adverse ~~as to make~~ and makes it ~~impracticable~~ impractical or inadvisable to proceed with completion of the public offering or the ~~delivery~~ sale of and payment for the Notes; (ii) any downgrading in the rating of any debt securities of any of the ~~Shares~~ Trust Manager, ▇▇.▇▇▇▇▇▇, the Issuer Trustee or any Swap Party by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of the Notes or any debt securities of any of the Trust Manager, ▇▇.▇▇▇▇▇▇, the Issuer Trustee or any Swap Party (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any material suspension or material limitation of trading in securities generally on the ~~terms and~~ New York Stock Exchange, the London Stock Exchange or any other exchange on which the Notes are listed, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of any of the Trust Manager, ▇▇.▇▇▇▇▇▇, the Issuer Trustee or any Swap Party on any exchange or in the ~~manner contemplated~~ over-the-counter market; (iv) any banking moratorium declared by U.S. Federal, New York, London, England or Australia authorities; or (v) any outbreak or escalation of major hostilities in which the United States, London, England or Australia is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the ~~Registration Statement~~ judgment of a majority in interest of the Underwriters including the Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the ~~Prospectus~~Notes. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives Representative shall have received ~~opinions~~ a certificate, dated the Closing Date, of ~~Foley & Lardner~~the managing director, ~~special couns~~director or any chief general manager of each ▇▇.▇▇▇▇▇▇ ~~▇▇r the Company~~ Party and (as to ~~the matters set forth below in subsections~~ paragraphs (i~~), (ii), (vi), (viii), (ix~~) and (~~xiv)), and the Vice President, General Counsel and Secretary~~ ii) below only) of an authorized officer of the ~~Company (as to the matters set forth~~ Issuer Trustee in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may bewhich such officers, to the ~~effect~~ best of their knowledge after reasonable investigation, shall state that: : (i) ~~The Company is validly existing as a corporation~~ the representations and warranties of such entity in ~~good standing under the laws of Delaware, with full corporate power~~ this Agreement are true and ~~authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement;~~ correct; (ii) ~~The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share,~~ such entity has complied with all agreements and ~~77,000,000 shares of preferred stock, $1.00 par value per share;~~ satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date; (iii) ~~The issued and outstanding shares of capital stock~~ in the case of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledgeTrust Manager, no stop order suspending the effectiveness of ~~the~~ any Registration Statement has been issued and no proceedings for that purpose have been instituted or are ~~threatened~~ contemplated by the Commission; and (iv) subsequent to the ~~Registration Statement and~~ date of the ~~Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the~~ most recent financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement supplied by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date▇▇. ~~(e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇~~▇▇▇▇▇▇ ~~▇▇▇~~ Parties to the ~~▇▇▇▇▇▇▇▇ters, dated the First Closing Date~~ Underwriters or the ~~Second Closing Date, as the case may be, with respect to the sale~~ Representative on behalf of the ~~Shares hereunder~~Underwriters, ~~the Registration Statement and other related matters as the Representatives may reasonably require~~there has been no material adverse change, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, nor any development or event involving a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Companyprospective material adverse change, in ~~their respective capacities~~ the condition (financial or other), business, properties or results of operations of such entity and its subsidiaries taken as ~~such, to the effect that: (i) The representations and warranties of the Company~~ a whole except as set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or ~~satisfied~~ contemplated by ~~it at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of~~ the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference as described in ~~the Registration Statement, and~~ such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set focertificate.

Appears in 1 contract

Sources: Underwriting Agreement (Crusade Management LTD)

Conditions of the Obligations of the Underwriters. The ~~obligations~~ obligation of ------------------------------------------------- the ~~several~~ Underwriters ~~under this Agreement shall~~ to purchase and pay for the Certificates will be subject to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of the date hereof and as of each Closing Date~~Transferor herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Transferor made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Transferor of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) On or prior to the Closing Date, [Accountants] shall have furnished to the Representative a letter dated as of the Closing Date substantially in the form and substance of the draft to which the Representative previously agreed. (b) The Registration Statement shall have ~~been declared~~ become effective ~~by the Commission~~ not later than ~~5:30 p.m.~~__:00 __.m., ~~Washington, D.C.~~ New York time, on the day following the date of this ~~Agreement,~~ Agreement or such later ~~time and~~ date as shall have been consented to by the ~~Representatives, which consent shall be deemed~~ Representative; and prior to ~~have been given if~~ the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Transferor, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faith. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the ProspectusCommission. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives Representative shall have received ~~opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company (~~as ~~to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary~~ of the ~~Company (as to~~ Closing Date an officer's certificate signed by a member or manager of the ~~matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii)~~ Transferor representing and ~~(xiii) addressed to the Representatives~~warranting that, as ~~the representatives~~ of the ~~Underwriters, and dated the First Closing Date or the Second~~ Closing Date, as the ~~case may be, to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power~~ representations and ~~authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock~~ warranties of the ~~Company consists of 60,000,000 shares of Common Stock~~Transferor in this Agreement will be true and correct in all material respects, ~~par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share,~~ that the Transferor has complied with all agreements and ~~77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately~~ satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform Closing Date in all material ~~respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent~~respects, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission. (d) Since the respective dates as of which information is given in the Prospectus as amended or supplemented, there shall not have occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting particularly the business or assets of the Trust, the Transferor, Ford Credit or Ford Motor Company or any material adverse change in the financial position or results or operations of the Trust, the Transferor, Ford Credit or Ford Motor Company otherwise than as set forth or contemplated in the Prospectus, which in any such case makes it impracticable or inadvisable in the Representative's reasonable judgment to proceed with the public offering or the delivery of the Certificates on the terms and in the manner contemplated in the Prospectus as amended or supplemented. (e) Subsequent to the execution and delivery of this Agreement, the United States shall not have become engaged in hostilities that have resulted in the declaration of a national emergency or a declaration of war that makes it impracticable or inadvisable in the Representative's reasonable judgment to proceed with the public offering of the delivery of the Certificates on the terms and in the manner contemplated in the Prospectus as amended or supplemented. (f) of Ford Credit and the Transferor, or other counsel satisfactory to the Representative in its reasonable judgment, shall have furnished to the Representative, his written opinion, dated the Closing Date, in form reasonably satisfactory to the Representative in its reasonable judgment, to the effect that: (i) The Transferor has been duly formed and is validly existing as a limited liability company in good standing under the laws of the State of Delaware, and is duly qualified to transact business and is in good standing in each jurisdiction in the United States of America in which the conduct of its business or the ownership of its property requires such qualification. (ii) This Agreement has been duly authorized, executed and delivered by the Transferor. (iii) The Pooling and Servicing Agreement and the Receivables Purchase Agreement have been duly authorized, executed and delivered by, and each constitutes a valid and binding obligation of, the Transferor. (iv) The consummation of the transactions contemplated by this Agreement, the Pooling and Servicing Agreement[,][and] the Receivables Purchase Agreement[ and the Interest Rate Swap Agreements], and the fulfillment of the terms thereof, will not conflict with or result in a material breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any material lien, charge or encumbrance upon any of the property or assets of the Transferor pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument known to such counsel under which the Transferor is a debtor or guarantor, nor will such action result in any violation of the provisions of the Limited Liability Company Agreement of the Transferor. (v) The Certificates have been duly authorized and executed by the Transferor; when authenticated by the Trustee in accordance with the Pooling and Servicing Agreement and delivered and paid for pursuant to the Underwriting Agreement, the Certificates will constitute valid and binding obligations entitled to the benefits provided by the Pooling and Servicing Agreement. (vi) The Registration Statement has become effective under the Act and, to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or threatened by the Commission; , the Registration Statement and the Prospectus as amended or supplemented and any ~~amendment or supplement thereto, including any document incorporated~~ further amendments and supplements thereto made by ~~reference into~~ the ~~Registration Statement~~ Transferor prior to the Closing Date (~~except for~~ other than the financial statements and ~~schedules and~~ other ~~statistical~~ accounting information contained in the Registration Statement or ~~financial data included therein~~the Prospectus as amended or supplemented or any further amendments or supplements thereto, or omitted therefrom, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the ~~Act;~~ Act and the ~~conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied;~~rules and regulations thereunder. (vii) ~~To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings~~ Such counsel believes that ~~are required to be described in~~ neither the Registration Statement (other than the financial statements and other accounting information contained therein or ~~the Prospectus that are not so described~~omitted therefrom, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel ~~is not verifying~~need express no opinion) nor any amendment hereto, ~~is not passing upon and does not assume any responsibility for~~ at the ~~accuracy, completeness or fairness of~~ time the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective datesame became effective, contained any untrue statement of a material fact or omitted ~~or omits~~ to state any material fact required to be stated therein or necessary to make the statements therein not misleading, . (viii) Such counsel believes that at the Closing Date the Prospectus as amended or ~~that~~ supplemented (other than the ~~Prospectus,~~ financial statements and the other accounting information contained therein or ~~any amendment or supplement thereto including any document incorporated by reference therein~~omitted therefrom, as ~~of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits~~ to ~~state a material fact necessary in order to make the statements therein, in light of the circumstances under~~ which ~~they were made, not misleading (provided that~~ such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has does not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain ~~all statements of material fact required to be stated therein, and do not include~~ any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements ~~therein~~ therein, in the light of the circumstances under which they were made, not misleading~~, and since the date on which the Registration Statement was initially filed, no event has occurred that was~~ . (ix) Such counsel does not know of any contract or other document of a character required to be ~~set forth in~~ filed as an ~~amended or supplemented prospectus or in an amendment~~ exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus as amended or supplemented or required to be described in the Registration Statement or the Prospectus as amended or supplemented that is not filed or incorporated by reference or described as required. (x) Such counsel does not know of any legal or governmental proceedings pending to which the Transferor is a party or to which any property of the Transferor is subject, and no such proceedings are known by such counsel to be threatened or contemplated by governmental authorities or threatened by others, other than as set forth or contemplated in the Prospectus as amended or supplemented and other than such proceedings that, in his opinion, will not have a material adverse effect upon the general affairs, financial position, net worth or results of operations (on an annual basis) of the Transferor and will not materially and adversely affect the performance by the Transferor of its obligations under, or the validity and enforceability of, the Pooling and Servicing Agreement, the Receivables Purchase Agreement or the Certificates. (xi) The Certificates, the Pooling and Servicing Agreement, the Receivables Purchase Agreement and this Agreement each conform in all material respects with the descriptions thereof contained in the Registration Statement and the Prospectus. (xii) The Transferor has full power and authority to sell and assign the property sold or to be sold and assigned to and deposited with the Trustee as part of the Trust and has duly authorized such sale and assignment to the Trustee by all necessary action. (xiii) Prior to any sale or assignment thereof by the Transferor to the Trust, the Transferor was the sole owner of all right, title and interest in, and had good and marketable title to, the Receivables transferred by it to the Trust. The assignment of the Receivables, all documents and instruments relating thereto and all proceeds thereof to the Trustee, pursuant to the Pooling and Servicing Agreement, vest in the Trustee all interests that were purported to be conveyed thereby, were free and clear of any liens, security interests or encumbrance except as specifically permitted pursuant to the Pooling and Servicing Agreement. (xiv) Immediately prior to the transfer of the Receivables to the Trustee, the Transferor's interest in the Receivables, the Related Security, the security interests in the Vehicles securing the Receivables and the proceeds of each of the foregoing was perfected upon the filing of the UCC-1 financing statement the form of which is attached to such opinion with the Secretary of State of the State of Michigan and constituted a perfected first priority interest therein. If a court concludes that the transfer of the Receivables from the Transferor to the Trustee is a sale, the interest of the Trustee in the Receivables, the Related Security, the security interests in the Vehicles securing the Receivables and the proceeds of each of the foregoing will be perfected upon the filing of the UCC-1 financing statement the form of which is attached to such opinion with the Secretary of State of the State of Michigan and will constitute a first priority perfected interest therein. If a court concludes that such transfer is not a sale, the Pooling and Servicing Agreement constitutes a grant by the Transferor to the Trustee of a valid security interest in the Receivables, the Related Security, the security interests in the Vehicles securing the Receivables and the proceeds of each of the foregoing, which security interest is perfected upon the filing of the UCC-1 financing statement the form of which is attached to such opinion with the Secretary of State of the State of Michigan and will constitute a first priority perfected security interest therein. No filing or other action, other than the filing of the UCC-1 financing statements with the Secretary of State of the State of Michigan referred to above, is necessary to perfect and maintain the interest or the security interest of the Trustee in the Receivables, the security interests in the Vehicles securing the Receivables and the proceeds of each of the foregoing against third parties. (xv) The Transferor is not, and will not as a result of the offer and sale of the Certificates as contemplated by this Agreement become, an "investment company" as defined in the Investment Company Act. (xvi) The statements in the Prospectus under the heading "Certain State and Local Tax Considerations" accurately describe the material Michigan tax consequences to holders of the Certificates. Such opinion may be made subject to the qualifications that the enforceability of the terms of the Pooling and Servicing Agreement, the Receivables Purchase Agreement and the Certificates may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of creditors' rights generally and by general equitable principles, regardless of whether such enforceability is considered in a proceeding in equity or at law. (g) of Ford Credit and the Transferor, or other counsel satisfactory to the Representative in its reasonable judgment, shall have furnished to the Representative his written opinion, dated as of the Closing Date, in form satisfactory to the Representative in its reasonable judgment, to the effect that: (i) Ford Credit has been so duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, and is duly qualified to transact business and is in good standing in each jurisdiction in the United States of America in which the conduct of its business or the ownership of its property requires such qualification. (ii) The indemnification agreement (the "Indemnification Agreement") dated as of the date hereof, between Ford Credit and the Underwriters, has been duly authorized, executed and delivered by Ford Credit. (iii) The Pooling and Servicing Agreement, the Receivables Purchase Agreement [and the Interest Rate Swap Agreements] have been duly authorized, executed and delivered by, and each constitutes a valid and binding obligation of, Ford Credit. (iv) The consummation of the transactions contemplated by the Pooling and Servicing Agreement, the Receivables Purchase Agreement[, the Interest Rate Swap Agreements] and the Indemnification Agreement, and the fulfillment of the terms thereof, will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under (in each case material to Ford Credit and its subsidiaries considered as a whole), or result in the creation or imposition of any lien, charge or encumbrance (in each case material to Ford Credit and its subsidiaries considered as a whole) upon any of the property or assets of Ford Credit pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement, guarantee, lease financing agreement or similar agreement or instrument known to such counsel under which Ford Credit is a debtor or guarantor, nor will such action result in any violation of the provisions of the Certificate of Incorporation or the By-Laws of Ford Credit. (v) Such counsel does not know of any legal or governmental proceedings pending to which Ford Credit is a party or to which any property of Ford Credit is subject, and no such proceedings are known by such counsel to be threatened or contemplated by governmental authorities or threatened by others, other than as set foforth or contemplated in the Prospectus as amended or supplemented and other than such proceedings that, in his opinion, will not have a material adverse effect upon the general affairs, financial position, net worth or results of operations (on an annual basis) of Ford Credit and its subsidiaries considered as a whole and will not materially and adversely affect the performance by Ford Credit of its obligations under, or the validity and enforceability of, the Pooling and Servicing Agreement, the Receivables Purchase Agreement[, the Interest Rate Swap Agreements] or the Indemnification Agreement. (vi) Ford Credit had and has full power and authority to sell and assign the property sold and assigned or to be sold and assigned to the Transferor pursuant to the Receivables Purchase Agreement and has duly authorized such sale and assignment to the Transferor by all necessary corporate action. (vii) The statements in the Prospectus under the caption "Risk Factors--Certain Legal Aspects" and the caption "Certain Legal Aspects of the Receivables", to the extent they constitute matters of law or legal conclusions, are correct in all material respects. (viii) The Receivables are "chattel paper" under the Uniform Commercial Code. (ix) Immediately prior to the sale of the Receivables to the Transferor, Ford Credit owned the Receivables free and clear of any lien, security interest or charge. With respect to each Receivable constituting part of the Trust, such Receivable is secured by a validly perfected first priorit

Appears in 1 contract

Sources: Underwriting Agreement (Ford Credit Auto Receivables LLC)

Conditions of the Obligations of the Underwriters. The obligations of the ~~several~~ Underwriters ~~under this Agreement shall~~ to purchase and pay for the Underwritten Notes will be subject to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of the date hereof~~ Depositor and ~~as of each Closing Date~~MBFS USA herein, to the accuracy of the ~~statements~~ certifications of officers of the ~~Company's officers~~ Mercedes Parties made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Depositor and MBFS USA of ~~its~~ their obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The Registration Statement shall ~~have been declared~~ be effective by at the ~~Commission not later than 5:30 p.m.~~Execution Time, ~~Washington~~and prior to the 20[__]-[_] Closing Date, D.C. time, on the date of this Agreement, or such later time and date as shall have been consented to by the Representatives, which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued by and no proceedings for that purpose or pursuant to Section 8A of the ~~Commission or any state securities commission nor~~Securities Act shall have been instituted or, to the knowledge of the ~~Company~~Depositor or the Representatives, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (b) Each of the Preliminary Prospectus and the Prospectus and any supplements thereto shall have been filed (if required) with the Commission in accordance with the Rules and Regulations and Section 6(a) hereof. Each of the Pricing Free Writing Prospectus and the Ratings Free Writing Prospectus shall have been filed with the Commission in accordance with Rule 433 of the Rules and Regulations and neither the Depositor nor MBFS USA has disseminated any other free writing prospectus that is required to be filed with the Commission. (c) On or prior to the date of this Agreement and on or prior to the 20[__]-[_] Closing Date, the Representatives shall have received a letter or letters, dated as of the date of this Agreement and as of the 20[__]-[_] Closing Date, respectively, of an independent registered public accounting firm reasonably acceptable to the Representatives, substantially in the form of the drafts to which the Representatives have previously agreed and otherwise in form and substance satisfactory to the Representatives and their counsel. (d) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred (i) any ~~change or development involving~~change, or ~~which could be reasonably expected to involve~~any development involving a prospective change, ~~a Material Adverse Effect~~in or affecting particularly the business or properties of any Mercedes Party which, ~~whether or not arising from transactions~~ in the ~~ordinary course~~ judgment of ~~business~~the Representatives, ~~and~~ materially impairs the investment quality of the Notes or makes it impractical or inadvisable to market the Notes; (ii) any suspension or limitation of trading in securities generally on the ~~Company shall not have sustained~~ New York Stock Exchange, or any ~~loss~~ setting of minimum or ~~interference from~~ maximum prices for trading on such exchange, or a material disruption in commercial banking or securities settlement or clearance services in the United States or with respect to Clearstream or Euroclear systems in Europe; (iii) any ~~labor dispute~~general commercial banking moratorium declared by Federal, ~~strike~~Delaware or New York authorities; or (iv) any outbreak or escalation of major hostilities in which the United States is involved, ~~fire~~any declaration of war by Congress, ~~flood~~or any other substantial national or international calamity or emergency if, ~~windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect~~in the reasonable judgment of the Representatives, the effect of ~~which~~ any such outbreak, escalation, declaration, calamity or emergency on the ~~Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make~~ U.S. financial markets makes it ~~impracticable~~ impractical or inadvisable to proceed with the ~~public offering or~~ offering, sale of and payment for the ~~delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus~~Underwritten Notes. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (de) The Representatives shall have received opinions of ~~Foley & Lardner, special couns~~▇▇▇▇▇▇ ▇▇~~r the Company (as~~ ▇▇▇▇ LLP, counsel to the ~~matters set forth below in subsections (i)~~Mercedes Parties and such other counsel acceptable to the Underwriters, ~~(ii)~~relating to general corporate and enforceability, ~~(vi)~~tax, ~~(viii), (ix)~~ perfection and ~~(xiv))~~priority, and ~~the Vice President, General Counsel and Secretary of the Company (as to the~~ true sale/nonconsolidation matters ~~set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii)~~ addressed to the Representatives, dated the 20[__]-[_] Closing Date and satisfactory in form and substance to the Representatives and their counsel. Such counsel shall also opine as to such other matters as the ~~representatives~~ Underwriters may reasonably request. (f) The Representatives shall have received opinions of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., counsel to the Mercedes Parties, the Owner Trustee and the Titling Trustee and such other counsel acceptable to the Underwriters, relating to general corporate and enforceability matters addressed to the Representatives, dated the ~~First~~ 20[__]-[_] Closing Date and satisfactory in form and substance to the Representatives and their counsel. (g) The Representatives shall have received an opinion addressed to them by ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP in its capacity as special tax counsel to the Issuing Entity, dated the 20[__]-[_] Closing Date, substantially to the effect that the statements in each of the Preliminary Prospectus and the Prospectus under the headings “Summary of Terms–– Tax Status” (to the extent relating to Federal income tax consequences), and “Material Federal Income Tax Consequences” to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, have been prepared or reviewed by such counsel and accurately describe the material income tax consequences to holders of the Notes, and the statements in each of the Preliminary Prospectus and the Prospectus under the heading “Summary of Terms––ERISA Considerations” and “Certain ERISA Considerations,” to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, have been prepared or reviewed by such counsel and accurately describe the material consequences to holders of the Notes under ▇▇▇▇▇. (h) The Representatives shall have received an opinion addressed to them of in-house counsel to the Asset Representations Reviewer, dated the 20[__]-[_] Closing Date and satisfactory in form and substance to the Representatives and their counsel. (i) The Representatives shall have received a negative assurance letter addressed to them of ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel to the Mercedes Parties, dated the 20[__]-[_] Closing Date, concerning the Time of Sale Information and the Prospectus in form and substance reasonably satisfactory to the Representatives and their counsel. (j) The Representatives shall have received a negative assurance letter addressed to them of [●], counsel to the Underwriters, dated the 20[__]-[_] Closing Date, concerning the Time of Sale Information and the Prospectus in form and substance reasonably satisfactory to the Representatives and their counsel. (k) The Representatives shall have received an opinion of [●], counsel to [●], relating to general corporate and enforceability matters addressed to the Representatives, dated the 20[__]-[_] Closing Date and satisfactory in form and substance satisfactory to the Representatives and their counsel. (l) The Representatives shall have received certificates dated the 20[__]-[_] Closing Date of the Chairman of the Board, the President, the Executive Vice President, any Vice President, the Treasurer, any Assistant Treasurer, the Secretary, the principal financial officer or the ~~Second Closing Date~~principal accounting officer of each of the Depositor and MBFS USA, in which such officer shall state that, to the best of his/her knowledge after reasonable investigation, (i) the representations and warranties of the Depositor and MBFS USA, respectively, contained in this Agreement are true and correct and the representations and warranties of the Mercedes Parties, respectively, contained in the 20[__]-[_] Basic Documents to which it is a party, as applicable, are true and correct in all material respects and that each Mercedes Party, as the case may be, has complied with all agreements and satisfied all conditions on its part to ~~the effect that: (i) The Company is validly existing as a corporation in good standing~~ be performed or satisfied under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately such agreements at or prior to the ~~sale of the Shares hereunder have been duly authorized and validly issued~~20[__]-[_] Closing Date, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or pursuant to Section 8A of the Securities Act have been instituted or are ~~threatened~~ contemplated by the Commission~~; the Registration Statement~~ , and ~~the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement~~ (~~except for the financial statements and schedules and~~ ii) other ~~statistical or financial data included therein,~~ than as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in such certificate, since the ~~Registration Statement or the Prospectus that are not so described~~Time of Sale, ~~nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus~~no material adverse change, or ~~required to be filed under the Exchange Act if upon such filing they would be incorporated~~development involving a prospective material adverse change, in ~~whole~~ or ~~in part, by reference therein,~~ affecting particularly the business or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree properties of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing DateMercedes Party, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such mattershas occurred. (fm) The Representatives shall have received evidence satisfactory to it of the filing of all UCC financing statements necessary to perfect (i) the Collateral Agent’s interest in the Collateral and (ii) the transfer of the interest of MBFS USA in the 20[__]-[_] Exchange Note and the proceeds thereof to the Depositor, the transfer of the interest of the Depositor in the 20[__]-[_] Exchange Note and the proceeds thereof to the Issuing Entity and the grant of the security interest by the Issuing Entity in the 20[__]-[_] Exchange Note and the proceeds thereof to the Indenture Trustee. (n) The Representatives shall have received, from each of the Depositor and MBFS USA, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of (i) the formation documents, (ii) the limited liability company agreement, bylaws or trust agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and by the 20[__]-[_] Basic Documents and (iv) the designation of incumbency of each such entity. (o) Each class of Notes shall have been rated by each Hired NRSRO as set forth in the Ratings Free Writing Prospectus, and in each case shall not have been placed on ~~each~~ any credit watch or review with a negative implication for downgrade. (p) On the 20[__]-[_] Closing Date, ~~a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer,~~ the Certificates shall have been issued by the Issuing Entity and ~~W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such,~~ transferred to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set foDepositor.

Appears in 1 contract

Sources: Underwriting Agreement (Mercedes-Benz Vehicle Trust)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Offered Securities on any Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company ~~herein set forth as of~~ and the ~~date hereof and as of each Closing Date~~Selling Shareholders herein, to the accuracy of the statements of ~~the Company's~~ Company officers made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company and the Selling Shareholders of ~~its~~ their obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) ~~The~~ On the date of the Prospectus (prior to the execution of this Agreement), on the effective date of any additional registration or any post-effective amendment to any Registration Statement, in each case, that is filed subsequent to the date of this Agreement and on each Closing Date (in each case, at 9:30 A.M., New York City time, on such date), KPMG Audit plc shall have furnished to the Representative a letter or letters, dated the respective date of delivery thereof, in form and substance satisfactory to the Representative. (b) If the Effective Time of the Additional Registration Statement (if any) is not prior to the execution and delivery of this Agreement, such Effective Time shall have ~~been declared effective by the Commission~~ occurred not later than ~~5:30 p.m.~~10:00 P.M., ~~Washington, D.C.~~ New York City time, on the date of this ~~Agreement~~Agreement or, if earlier, the time the Prospectus is printed and distributed to any Underwriter, or shall have occurred at such later ~~time and~~ date as shall have been consented to by the ~~Representatives, which consent~~ Representative. The Prospectus shall ~~be deemed to~~ have been ~~given if~~ filed with the Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement. Prior to such Closing Date, no stop order suspending the effectiveness of a Registration Statement shall have been ~~declared effective~~ issued and no proceedings for that purpose shall have been instituted or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Underwriters’ reasonable satisfaction. (c) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or ~~before the date and time requested~~ any development or event involving a prospective change, in the ~~acceleration request submitted on behalf~~ condition (financial or other), business, properties or results of operations of the ~~Representatives pursuant~~ Company or its subsidiaries which, in the judgment of the Representative, is material and adverse and makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities, preferred shares, financial strength or claims paying ability of the Company or any of the Designated Subsidiaries by any ‘‘nationally recognized statistical rating organization’’ (as defined for purposes of Rule ~~461~~ 436(g) under the Act) or any public announcement that any such organization has under surveillance or review its rating of any debt securities or preferred shares of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the Company has been placed on negative outlook; ~~all filings required~~ (iii) any change in U.S., U.K., Bermudian or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Representative, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the NYSE, or any setting of minimum prices for trading on such exchange; (v) or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by ~~Rules 424(b~~United States federal, New York, U.K. or Bermudian authorities; (vii) a change or development involving a prospective change in Bermuda taxation affecting the Company, the Offered Securities or transfers thereof; (viii) any major disruption of settlements of securities or clearance services in the United States, United Kingdom or Bermuda or (ix) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, the United Kingdom or Bermuda, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of the Representative, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and ~~430A under~~ payment for the ~~Act~~ Offered Securities. (d) The Representative shall have ~~been timely made~~received an opinion, dated the applicable Closing Date, of LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, special United States counsel for the Company in the form of Annex I hereto. (e) The Representative shall have received an opinion, dated the applicable Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Bermuda counsel for the Company in the form of Annex II hereto. (f) The Representative shall have received an opinion, dated the applicable Closing Date, of ▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, U.K. counsel for the Company, in the form of Annex III hereto. (g) The Representative shall have received an opinion, dated the applicable Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇, General Counsel to the Company, in the form of Annex IV hereto. (h) The Representative shall have received opinions, dated such Closing Date, of Weil, Gotshal & ▇▇▇▇▇▇ LLP, special United States counsel for the Selling Shareholders, in the form of Annex V hereto. (i) The Representative shall have received an opinion, dated such Closing Date, of Walkers, Cayman Islands counsel for certain of the Selling Shareholders, in form and substance satisfactory to the Representative. (j) The Representative shall have received an opinion, dated such Closing Date, of ▇▇ ▇▇▇▇▇▇, German counsel for certain of the Selling Shareholders, in form and substance satisfactory to the Representative. (k) The Representative shall have received an opinion, dated such Closing Date, of De Brauw Blackstone Westbroek N.V., Dutch and Netherlands Antilles counsel for certain of the Selling Shareholders, in form and substance satisfactory to the Representative. (l) The Representative shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated applicable Closing Date, with respect to the Registration Statements, the Prospectus and other related matters as the Representative may require, and the Selling Shareholders and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (m) The Representative shall have received a certificate or certificates, dated the applicable Closing Date, of the Chief Executive Officer and the Chief Financial Officer of the Company in which such officers, to the best of their knowledge after reasonable investigation, shall state that: the representations and warranties of the Company in this Agreement are true and correct; the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; no stop order suspending the effectiveness of ~~the Registration Statement shall have been issued by the Commission or~~ any state securities commission nor, to the knowledge of the Company, shall any proceedings for that purpose have been instituted or threatened; and any request of the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faith. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives shall have received opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are ~~threatened~~ contemplated by the Commission; the ~~Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the~~ Additional Registration Statement (~~except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion~~if any) ~~comply as to form in all material respects with~~ satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule 462(b), including payment of the applicable filing fee in accordance with Rule 111(a) or (b) under the Act; , prior to the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or time the Prospectus ~~that are not so described~~was printed and distributed to any Underwriter; and, ~~nor,~~ subsequent to ~~such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document~~ the date of ~~a character required to be described~~ the most recent financial statements in ~~the Registration Statement or~~ the Prospectus, there has been no material adverse change, or ~~required to be filed under the Exchange Act if upon such filing they would be incorporated~~any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole ~~or in part, by reference therein, or to be filed~~ except as ~~an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements~~ set forth in the Prospectus ~~under the heading "Description of Capital Stock,"~~ or as described in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings;certificate. (ixn) The Company ~~has full corporate power~~ shall have provided the Representative with copies of such additional opinions, certificates, letters and ~~authority to enter into and perform this Agreement;~~ documents as the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD);Representative reasonably requests. (xo) The ~~execution~~‘‘lock-up’’ agreements, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result each substantially in the ~~breach~~form of Annex VI hereto, ~~modification~~ from the Selling Shareholders relating to sales and certain other dispositions of Ordinary Shares or ~~termination of~~certain other securities, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit delivered to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters Representative on or before ~~each Closing Date~~the date hereof, shall be in full force and effect. (ep) ~~The Representatives~~ It shall be a condition to the purchase and sale of the Additional Securities that the Representative shall have orally notified the Selling Shareholders (the ‘‘Resale Notice’’) that the Underwriters have resold at least 0 of the Initial Securities to purchasers who are not associates (as defined in Section 422(4) of the FSMA) of the Underwriters. Following receipt of the Resale Notice, the representations and warranties of the Selling Shareholders contained herein and the statements in any certificates furnished by the Selling Shareholders hereunder shall be true and correct as of an Additional Closing Date. In the event the Resale Notice is not received in time for such condition to be met, as a condition to the purchase and sale of the Additional Securities, the Underwriters shall have received an at the applicable Additional Closing Date: (i) The favorable opinion of ~~Michael Best & Friedrich LLP~~LeBoeuf, Lamb, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇& ▇▇▇▇▇▇ ~~▇▇▇ ▇▇ief Financial Officer~~LLP, ~~and W. David Romoser~~special U.S. counsel for the Company, ~~Vice President,~~ together with the favorable opinions of ▇▇▇▇▇▇▇ ▇▇▇▇~~sel~~ ▇▇▇▇ ▇▇▇▇▇▇, Bermuda counsel for the Company, ▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, U.K. counsel for the Company, ▇▇▇▇▇ ▇▇▇▇▇▇, General Counsel to the Company, Weil, Gotshal & ▇▇▇▇▇▇ LLP, special U.S. counsel for the Selling Shareholders, Walkers, Cayman Islands counsel for certain of the Selling Shareholders, ▇▇ ▇▇▇▇▇▇, German counsel for certain of the Selling Shareholders and ~~Secretary~~De Brauw Blackstone Westbroek N.V., Dutch and Netherlands Antilles counsel for certain of the Selling Shareholders, each in form and substance reasonably satisfactory to counsel for the Underwriters, dated the applicable Additional Closing Date, relating to the Additional Securities and otherwise to the same effect as the opinion required by Sections 7(d), 7(e), 7(f),7(g), 7(h), 7(i), 7(j) and 7(k) hereof. (ii) The favorable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated the applicable Additional Closing Date, relating to the Additional Securities, as applicable, to be purchased on such closing date and otherwise to the same effect as the opinion required by Section 7(l) hereof. (iii) A certificate or certificates, dated the Additional Closing Date, of the ~~Company, in their respective capacities as such, to~~ Chief Executive Officer and the ~~effect that: (i) The representations and warranties~~ Chief Financial Officer of the Company ~~set forth in~~ confirming that the certificate delivered at the Closing Date pursuant to Section 2 7(m) hereof ~~are~~ remains true and correct as of such Additional Closing Date. (iv) A letter from KPMG Audit plc, in form and substance satisfactory to the ~~date~~ Underwriters and dated the Additional Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (a) of this ~~Agreement~~ Section, except that the specified date referred to shall be a date not more than five days prior to such Additional Closing Date. (q) At any Closing Date, counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the ~~date~~ Offered Securities, as herein contemplated, or in order to evidence the accuracy of ~~such certificate~~any of the representations or warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company and the Selling Shareholders in connection with the issuance and sale of the Offered Securities, as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters. (r) The Offered Securities shall be listed on the NYSE and the Company ~~has complied~~ shall not have taken any action designed or likely to have the effect of delisting the Offered Securities from the NYSE. (s) If any condition specified in ~~all material respects with all the agreements~~ this Section shall not have been fulfilled when and ~~satisfied all the conditions~~ as required to be ~~performed or satisfied~~ fulfilled, this Agreement may be terminated by it the Representative by notice to the Company at any time at or prior to the ~~date of such certificate; (ii) The Commission has not issued an order preventing~~ Initial Closing Date or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration StatementAdditional Closing Date, and such ~~documents contain all statements~~ termination shall be without liability of ~~material fact required~~ any party to ~~be stated therein~~any other party except as provided in Section 5(a)(xi) and except that Sections 2, 8 and ~~do not include~~ 10 shall survive any ~~untrue statement~~ such termination and remain in full force and effect. The Representative may in its sole discretion waive on behalf of ~~a material fact or omit to state~~ the Underwriters compliance with any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment conditions to the ~~Registration Statement that has not been so set fo~~obligations of the Underwriters hereunder.

Appears in 1 contract

Sources: Underwriting Agreement (Aspen Insurance Holdings LTD)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject to the ~~accuracy~~ condition that each of the ~~representations~~ Registration Statement, the ADS Registration Statement and ~~warranties~~ the Exchange Act Registration Statement shall have become effective not later than 5:00 p.m. (New York City time) on ~~the part of the Company herein set forth as of~~ the date hereof and as of each Closing Date, to the accuracy of the statements of the Company's officers made pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder, and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ representations and warranties of the Company and the Selling Shareholders contained in this Agreement and any certificates delivered pursuant to this Agreement shall be true and correct as of such Closing Date, and the Company and the Selling Shareholders shall have ~~been declared effective by the Commission not later than 5:30 p.m., Washington, D.C. time, on the date~~ performed all of their respective obligations under this ~~Agreement, or such later time and date as~~ Agreement theretofore to be performed. (b) The Representatives shall have ~~been consented to by the Representatives~~received on such Closing Date a certificate, ~~which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date~~ dated such Closing Date and ~~time requested in the acceleration request submitted~~ signed on behalf of the ~~Representatives pursuant~~ Company by an executive officer of the Company, to ~~Rule 461 under~~ the ~~Act;~~ effect that (i) the representations and warranties of the Company contained in this Agreement are true and correct as of such Closing Date, (ii) the Company have complied with all ~~filings~~ of the agreements, performed all of their obligations and satisfied all of the conditions hereunder on their part that are required ~~by Rules 424(b~~to be complied with, performed or satisfied on or before such Closing Date and (iii) subsequent to the date of the most recent financial statements in the Registration Statement, the General Disclosure Package and ~~430A under~~ the ~~Act~~ Final Prospectus, there has been no development or event having a Material Adverse Effect, or any development or event involving a prospective change that is reasonably likely to have a Material Adverse Effect except as set forth in the General Disclosure Package or as described in such certificate. (c) The Final Prospectus shall have been ~~timely made;~~ filed with the Commission in accordance with the Rules and Regulations and Section 5(A)(a) hereof. Prior to such Closing Date, no stop order suspending the effectiveness of ~~the~~ a Registration Statement shall have been issued ~~by the Commission or any state securities commission nor, to the knowledge of the Company, shall any~~ and no proceedings for that purpose shall have been instituted ~~or threatened; and any request of~~ or, to the ~~Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise~~Company’s best knowledge, shall ~~have been complied with to~~ be contemplated by the ~~reasonable satisfaction of the Representatives acting in good faith~~Commission. (bd) Subsequent to the execution and delivery of this ~~Agreement, (i)~~ Agreement and prior to such Closing Date, there shall not have occurred any ~~change or development involving~~change, or ~~which could be reasonably expected to involve~~any development involving a prospective change, ~~a Material Adverse Effect, whether or not arising from transactions~~ in the ~~ordinary course~~ condition, financial or otherwise, or in the earnings, business or operations of ~~business, and (ii)~~ the Company ~~shall not have sustained any loss or interference from any labor dispute~~and the Controlled Entities, ~~strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having~~ taken as a ~~Material Adverse Effect~~whole, the effect of which in the reasonable judgment of the Representatives is material and adverse and, in the reasonable judgment of the Representatives, makes it impracticable to proceed with the offering, sale or delivery of the Offered Securities on such Closing Date on the terms and in the manner contemplated by this Agreement. (e) There shall not be any material adverse legislative or regulatory developments in the PRC, including but not limited to the M&A Rules and Related Clarifications and laws, rules and regulations that would affect the validity and enforceability of the VIE Agreements, which in the reasonable judgment of the Representatives, in consultation with the Company, ~~in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to~~ would make it ~~impracticable~~ inadvisable or ~~inadvisable~~ impractical to proceed with the public offering or the delivery of the ~~Shares~~ Offered Securities on such Closing Date on the terms and in the manner contemplated in the Registration Statement and the Prospectus. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives shall have received opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received letters, dated, respectively, the date hereof and such Closing Date, of PricewaterhouseCoopers, confirming that they are a registered public accounting firm and independent public accountants within the meaning of the Securities Laws and substantially in form and substance satisfactory to the Underwriters, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Final Prospectus; provided that the letter delivered on each Closing Date shall use a “cut-off date” not earlier than three business days prior to such Closing Date. (g) The Representatives shall have received the customary opinions and disclosure letter of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, United States counsel for the Company, dated such Closing Date, in form and substance satisfactory to the Representatives. (h) The Company shall have received a ~~certificate~~ customary opinion from Fangda Partners, PRC counsel for the Company, dated such Closing Date, in form and substance satisfactory to the Representatives. A copy of ~~Kenneth W. Krueger~~such opinion shall have been provided to the Representatives with consent from such counsel. (i) The Representatives shall have received a customary opinion from ▇▇▇▇▇▇ and Calder, ~~Senior Vic~~Cayman Islands counsel for the Company, dated such Closing Date, in form and substance satisfactory to the Representatives. (j) The Representatives shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, United States counsel for the Underwriters, the customary opinions and disclosure letter, dated such Closing Date, in form and substance satisfactory to the Representatives. (k) The Representatives shall have received from King & Wood Mallesons, PRC counsel for the Underwriters, a customary opinion, dated such Closing Date, in form and substance satisfactory to the Representatives. (l) The Representatives shall have received one or more customary opinions from U.S. counsels related to the Selling Shareholders, dated such Closing Date, in form and substance satisfactory to the Representatives. (m) The Representatives shall have received one or more customary opinions of the Selling Shareholders’ local counsels, dated such Closing Date, in form and substance satisfactory to the Representatives. (n) The Representatives shall have received a customary opinion from ▇▇▇▇▇▇▇▇▇ ▇▇~~▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇~~▇▇▇▇▇ ▇▇▇▇ & ▇~~sel~~ ▇▇▇▇ LLP, counsel for the Depositary, in form and ~~Secretary~~substance satisfactory to the Representatives. (o) On or prior to the date hereof, the Representatives shall have received duly executed lock-up agreements from: (i) each of ▇▇▇▇ ▇▇▇ Ma and ▇▇▇▇▇▇ ▇. ▇▇▇▇, substantially in the form set forth in Exhibit A1; (ii) each of Yahoo! Inc., Yahoo! Hong Kong Holdings Limited, SB China Holdings Pte Ltd, SoftBank Corp. and SBBM Corporation, substantially in the form set forth in Exhibit A2; (iii) each of the non-executive directors listed in Schedule D1, substantially in the form set forth in Exhibit A3; (iv) each of the officers, partners, employees and participants in the Company’s incentive plans listed in Schedule D2, substantially in ~~their respective capacities as such~~the form set forth in Exhibit A4; (v) each of the existing shareholders listed in Schedule D3, substantially in the form set forth in Exhibit A5; and (vi) Golden Web Investment Limited, substantially in the form set forth in Exhibit A6; and each of the lock-up letters referred to in clauses (i) to (vi) shall be in full force and effect on such Closing date. (p) As of such Closing Date, the Company and the Depositary shall have executed and delivered the Deposit Agreement and the Deposit Agreement shall be in full force and effect and the Company and the Depositary shall have taken all action necessary to permit the deposit of the Offered Shares and the issuance of the Offered Securities in accordance with the Deposit Agreement. (q) The Depositary shall have furnished or caused to be furnished to the ~~effect that:~~Representatives at such Closing Date, certificates satisfactory to the Representatives evidencing the deposit with it of the Offered Shares being so deposited against issuance of the Offered Securities to be delivered by the Company at such Closing Date, and the execution, countersignature (if applicable), issuance and delivery of such Offered Securities pursuant to the Deposit Agreement and such other matters related thereto as the Representatives may reasonably request. (r) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereunder. (s) Offered Securities shall have been approved to be listed on the Exchange. (t) Each Selling Shareholder (other than Yahoo! Hong Kong Holdings Limited) shall have delivered to the Representatives a Power of Attorney and a Custody Agreement, each of which duly executed and in form and substance satisfactory to the Representatives. (u) Yahoo! Hong Kong Holdings Limited shall have delivered to the Representatives an executed transfer form for the Offered Shares represented by the Offered Securities to be respectively sold by Yahoo! Hong Kong Holdings Limited hereunder. (v) (i) The Representative shall have received a certificate, dated such Closing Date, of an attorney-in-fact of each Selling Shareholder, in which the attorney-in-fact shall state that: the representations and warranties of ~~the Company set forth~~ such Selling Shareholder in ~~Section 2 hereof~~ this Agreement are true and correct as of ~~the date of this Agreement and as of the date of~~ such ~~certificate, and the Company~~ Closing Date; such Selling Shareholder has complied ~~in all material respects~~ with all ~~the~~ agreements and satisfied all ~~the~~ conditions on their part to be performed or satisfied ~~by it~~ hereunder at or prior to such Closing Date; this Agreement is in the ~~date~~ form or substantially the form approved by such Selling Shareholder; and such attorney-in-fact was duly acting as the attorney-in-fact of such ~~certificate; (ii) The Commission has not issued an order preventing or suspending~~ Selling Shareholder at the ~~use~~ respective times of the ~~Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending~~ signing and delivery of this Agreement, the ~~effectiveness of~~ applicable lock-up agreement for such Selling Shareholder, the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, Custody Agreement and any ~~amendment~~ other document executed and delivered by such attorney-in-fact prior to or ~~supplement thereto~~on such Closing Date on behalf of such Selling Shareholder, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set foif any.

Appears in 1 contract

Sources: Underwriting Agreement (Yahoo Inc)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of each of the ~~Company~~ Trust, the Depositor and NMAC herein ~~set forth as of~~ on the date hereof and ~~as of each Closing~~ at the Series 2016-A Issuance Date, to the accuracy of the statements of officers of the ~~Company's officers~~ Trust, the Depositor and NMAC made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Trust, the Depositor and NMAC of ~~its~~ their respective obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) ~~The~~ On or before the Series 2016-A Issuance Date, a nationally recognized accounting firm who are independent public accountants shall have furnished to the Representative letters dated respectively as of the date of this Agreement and as of the Series 2016-A Issuance Date substantially in the forms of the drafts to which the Representative previously agreed. (b) If the time of effectiveness of the Initial Registration Statement is not prior to the execution and delivery of this Agreement, such time of effectiveness shall have ~~been declared effective by the Commission~~ occurred not later than ~~5:30 p.m.~~10:00 a.m., ~~Washington, D.C.~~ New York time, on the date of this ~~Agreement,~~ Agreement or such later ~~time and~~ date as shall have been consented to by the ~~Representatives, which consent shall be deemed to have been given if~~ Representative. If the time of effectiveness of the Initial Registration Statement is prior to the execution and delivery of this Agreement, the Preliminary Prospectus, the Ratings Free Writing Prospectus and the Final Prospectus and all amendments and supplements thereto shall have been ~~declared effective~~ filed with the Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement. If the time of effectiveness of the Additional Registration Statement (if any) is not prior to the execution and delivery of this Agreement, such time of effectiveness shall have occurred not later than 10:00 a.m., New York time, on ~~or before~~ the date of this Agreement or, if earlier, the time the Final Prospectus is printed and ~~time requested in the acceleration request submitted on behalf of the Representatives pursuant~~ distributed to ~~Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act~~ any Underwriter, or shall have occurred at such later date as shall have been ~~timely made;~~ consented to by the Representative. Prior to the Series 2016-A Issuance Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Depositor, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faith. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the ProspectusCommission. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives Underwriters shall have received ~~opinions of Foley & Lardner~~an officers’ certificate, ~~special couns▇▇ ▇▇r~~ dated the ~~Company (as to~~ Series 2016-A Issuance Date, signed by the ~~matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary~~ Chairman of the ~~Company (as to~~ Board, the ~~matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii)~~ President or any Vice President and ~~(xiii) addressed to the Representatives, as the representatives~~ by a principal financial or accounting officer of the ~~Underwriters,~~ Depositor representing and ~~dated the First Closing Date or the Second Closing Date, as the case may be~~warranting that, to the ~~effect that~~best of such officers’ knowledge after reasonable investigation, as of the Series 2016-A Issuance Date: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock Each of the ~~Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share,~~ representations and ~~77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock~~ warranties of the ~~Company immediately prior to~~ Depositor in this Agreement is true and correct in all material respects, that the ~~sale of the Shares hereunder have been duly authorized~~ Depositor has complied with all agreements and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform satisfied in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the ~~requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent~~Series 2016-A Issuance Date, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, that no stop order suspending the effectiveness of ~~the~~ any Registration Statement has been issued and no proceedings for that purpose have been instituted or or, to the best of their knowledge, are ~~threatened~~ contemplated by the Commission~~; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement~~ . (~~except for the financial statements and schedules and other statistical or financial data included~~ ii) Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended and supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of the Depositor or any of its affiliates (as such term is defined in Rule 501(b) under the Act) (each, an “Affiliate”), or in the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the term “material” in this Agreement that refer to the Depositor or its Affiliates, or any of them, shall be interpreted in proportion to the business of NMAC and its consolidated subsidiaries, as a whole, and not in proportion to the business of the Depositor or its Affiliate(s) individually. (d) The Underwriters shall have received an officers’ certificate, dated the Series 2016-A Issuance Date, signed by the Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of NMAC representing and warranting that, to the best of such ~~counsel need express no opinion~~officers’ knowledge after reasonable investigation, as of the Series 2016-A Issuance Date: (i) ~~comply as to form~~ Each of the representations and warranties of NMAC in this Agreement is true and correct in all material ~~respects~~ respects, that NMAC has complied with all agreements and satisfied, in all material respects, all conditions on its part to be performed or satisfied hereunder at or prior to the ~~requirements~~ Series 2016-A Issuance Date, that no stop order suspending the effectiveness of any Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the best of their knowledge, are contemplated by the Commission. (ii) Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended or supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ~~Act;~~ ordinary course of business, of NMAC or any of its Affiliates, or the ~~conditions for use~~ ability of ~~Form S-3~~such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, ~~set forth~~ all references to the terms “material” in this Agreement that refer to NMAC or its Affiliates, or any of them, shall be interpreted in proportion to the ~~General Instructions thereto~~business of NMAC and its consolidated subsidiaries, ~~have been satisfied;~~as a whole, and not in proportion to the business of NMAC or its Affiliate(s) individually. (~~vii~~e) ~~To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required~~ Subsequent to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this ~~Agreement or the consummation of the transactions contemplated by this Agreement~~ Agreement, there shall not have occurred (~~except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x~~i) ~~The execution, delivery and performance of this Agreement by the Company will not: (A) violate~~ any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiarychange, or any development involving a prospective change, in or affecting particularly the business or properties of ~~their respective owned~~ the Trust, the Depositor, Nissan North America, Inc. (“NNA”) or ~~leased property is bound~~NMAC which, in the judgment of the Representative, materially impairs the investment quality of the Notes or makes it impractical or inadvisable to proceed with completion of the sale of and ~~which is filed or incorporated by reference as an exhibit to~~ payment for the ~~Registration Statement~~Notes; or (Cii) ~~violate~~ any ~~statute, ordinance, order, rule, decree or regulation~~ suspension of trading of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of ~~the Company,~~ NNA on any exchange or in any over-the-counter market; (iii) any suspension or limitation of trading in securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading generally on the New York Stock ~~Exchange;~~Exchange or any setting of minimum prices for trading on such exchange; (iv) any material disruption in commercial banking, securities entitlement or clearance services in the United States; (v) any banking moratorium declared by federal or New York authorities; or (vi) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes. (~~xiii~~f) To At the Series 2016-A Issuance Date, ▇▇▇▇ ▇. ▇▇▇▇, Esq., General Counsel of the Depositor and NMAC, or other counsel reasonably satisfactory to the Representative in its reasonable judgment, shall have furnished to the Representative such counsel~~'s knowledge~~’s written opinion or opinions, ~~neither~~ subject to customary qualifications, assumptions, limitations and exceptions, dated the ~~Company nor~~ Series 2016-A Issuance Date, reasonably satisfactory in form and substance to the ~~Significant Subsidiary is~~Representative and its counsel. (g) At the Series 2016-A Issuance Date, ~~nor with~~ ▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel to the ~~giving~~ Depositor and NMAC, shall have furnished to the Representative their written opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated as of ~~notice or passage of time or both would be~~the Series 2016-A Issuance Date, in ~~violation of~~ form and substance reasonably satisfactory to the Representative and its ~~respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in~~ counsel, with respect to general corporate matters, tax matters, the ~~Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives~~ validity of the ~~Company~~Notes, ~~representatives~~ the Registration Statement, the Final Prospectus, the effectiveness of ~~auditors for~~ such Registration Statement and the ~~Company and representatives of the Underwriters and their counsel during which the content~~ information contained in each of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Final Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (eh) ~~The Representatives~~ At the Series 2016-A Issuance Date, ▇▇▇▇▇ ▇▇▇▇▇ LLP shall have ~~received an~~ furnished their written opinion or opinions, subject to customary qualifications, assumptions, limitations and exceptions, dated the Series 2016-A Issuance Date, with respect to the characterization of ~~Michael Best & Friedrich LLP~~the transfer of the Receivables by NMAC to the Depositor and with respect to other bankruptcy and perfection of security interest matters and such opinion shall be reasonably satisfactory in form and in substance to the Representative and its counsel. (i) At the Series 2016-A Issuance Date, ▇▇▇▇▇▇▇ ▇▇~~▇ the~~ ▇▇▇~~▇▇▇▇▇ters~~▇ LLP, counsel to the Underwriters, shall have furnished their written opinion dated the ~~First Closing Date or the Second Closing~~ Series 2016-A Issuance Date~~, as the case may be~~, with respect to the ~~sale~~ validity of the ~~Shares hereunder, the Registration Statement~~ Notes and such other related matters as the ~~Representatives may reasonably~~ Underwriters shall require, and such opinion shall be reasonably satisfactory in form and substance to the ~~Company~~ Representative and its counsel and the Depositor shall have furnished or caused to be furnished to such counsel such documents ~~and shall have exhibited to them such papers and records~~ as ~~such counsel~~ they may reasonably request for the purpose of enabling them to pass upon such matters. (fj) ~~The Representatives shall have received on each Closing~~ At the Series 2016-A Issuance Date, ~~a certificate of Kenneth W. Krueger, Senior Vic▇~~ ▇▇▇▇▇▇▇▇▇ , ▇▇▇▇▇▇ & Finger, counsel to the Trust and the Owner Trustee, shall have furnished their written opinion to you, the Depositor and the Servicer, dated the Series 2016-A Issuance Date and reasonably satisfactory in form and substance to the Representative and its counsel. (k) At the Series 2016-A Issuance Date, ▇▇~~ief Financial Officer~~▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Indenture Trustee, shall have furnished their written opinion dated as of Series 2016-A Issuance Date and ~~W. David Romoser~~reasonably satisfactory in form and substance to the Representative and its counsel. (l) At the Series 2016-A Issuance Date, in-house counsel to the Asset Representations Reviewer, shall have furnished such counsel’s written opinion dated as of Series 2016-A Issuance Date and reasonably satisfactory in form and substance to the Representative and its counsel. (m) The Representative shall have received an officer’s certificate dated the 2016-A Issuance Date of the Chairman of the Board, the President or any Vice ~~President~~President and by a principal financial or accounting officer of each of the Depositor and NMAC in which each such officer shall state that, to the best of such officer’s knowledge after reasonable investigation, the representations and warranties of the Depositor or NMAC, as applicable, contained in the Transfer and Servicing Agreement and the representations and warranties of NMAC or the Depositor, as applicable, contained in the Receivables Purchase Agreement are true and correct in all material respects and that the Depositor or NMAC, as applicable, has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the Series 2016-A Issuance Date in all material respects. (n) At the Series 2016-A Issuance Date, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇~~sel and Secretary~~▇▇ & ▇▇▇▇▇, ~~of the Company~~LLP, ~~in their respective capacities as such,~~ special Tennessee counsel to the ~~effect that:~~Depositor and NMAC, shall have furnished their written opinion dated as of Series 2016-A Issuance Date and reasonably satisfactory in form and substance to the Representative and its counsel. (io) The ~~representations and warranties~~ Representative shall have received evidence of ratings letters that assign the ~~Company set forth~~ ratings to the Notes as specified in ~~Section 2 hereof are true and correct as of~~ the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at Ratings Free Writing Prospectus. (p) On or prior to the ~~date of such certificate; (ii) The Commission has not issued an order preventing or suspending~~ Series 2016-A Issuance Date, the ~~use of~~ Trust, the ~~Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued;~~ Depositor and NMAC shall have furnished to the ~~knowledge of~~ Underwriters such further certificates and documents as the ~~respective signatories, no proceedings for that purpose~~ Underwriters shall reasonably have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set forequired.

Appears in 1 contract

Sources: Underwriting Agreement (Nissan Wholesale Receivables Corp Ii)

Conditions of the Obligations of the Underwriters. The obligations of ------------------------------------------------- the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Certificates will be subject to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of the date hereof and as of each Closing Date~~Bank herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Bank made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Bank of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Prospectus and any supplements thereto shall have been ~~declared effective by~~ filed (if required) with the Commission ~~not later than 5:30 p.m., Washington, D.C. time, on~~ in accordance with the ~~date of this Agreement, or such later time~~ rules and date as shall have been consented to by the Representatives, which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A regulations under the Act ~~shall have been timely made;~~ and Section 1 hereof, and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Bank, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or by any authority administering any state securities ~~commission for inclusion of additional information in the Registration Statement,~~ or ~~otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faith~~blue sky law. (b) On or prior to the date of the Prospectus and on or prior to the Closing Date, the Underwriters shall have received a letter or letters, dated as of the date of the Prospectus and as of the Closing Date, respectively, of Coopers & ▇▇▇▇▇▇▇ L.L.P., Certified Public Accountants, substantially in the form of the drafts to which the Representative has previously agreed and otherwise in form and substance satisfactory to the Representative and its counsel. (c) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred (i) any ~~change or development involving~~change, or ~~which could be reasonably expected to involve~~any development involving a prospective change, ~~a Material Adverse Effect~~in or affecting particularly the business or properties of the Trust, ~~whether~~ or ~~not arising from transactions~~ the Bank which, in the ~~ordinary course~~ judgment of ~~business~~the Representative, ~~and~~ materially impairs the investment quality of the Certificates or makes it impractical or inadvisable to market the Certificates; (ii) any suspension or limitation on trading in securities generally on the ~~Company shall not have sustained~~ New York Stock Exchange or the National Association of Securities Dealers National Market system, or any ~~loss~~ setting of minimum prices for trading on such exchange or ~~interference from~~ market system; (iii) any ~~labor dispute~~suspension of trading of any securities of BANC ONE CORPORATION on any exchange or in the over-the-counter market which materially impairs the investment quality of the Certificates or makes it impractical or inadvisable to market the Certificates; (iv) any banking moratorium declared by Federal, ~~strike~~Delaware or New York authorities; or (v) any outbreak or escalation of major hostilities or armed conflict, ~~fire~~any declaration of war by Congress, ~~flood~~or any other substantial national or international calamity or emergency if, ~~windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect~~in the judgment of the Representative, the effect of ~~which on the Company, in~~ any such ~~case described in clause (i)~~ outbreak, escalation, declaration, calamity, or ~~(ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make~~ emergency makes it ~~impracticable~~ impractical or inadvisable to proceed with completion of the ~~public offering~~ sale of and payment for the Certificates. (d) At the Closing Date, the Bank shall have furnished to the Representative certificates of a vice president or more senior officer of the Bank as to the accuracy of the representations and warranties of the Bank herein at and as of the Closing Date, as to the performance by the Bank of all of its obligations hereunder to be performed at or prior to such Closing Date, and as to such other matters as the Representative may reasonably request. (e) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Associate General Counsel of First USA Bank, shall have furnished to the Representative her written opinion, addressed to the Representative and dated the Closing Date, in form and substance satisfactory to the Representative and its counsel, substantially to the effect that: (i) The Bank has been duly incorporated and is validly existing as a bank in good standing under the laws of the State of Delaware with full power and authority (corporate and other) to own its properties and conduct its business, as presently owned and conducted by it, and to enter into and perform its obligations under this Agreement, the Spread Account Agreement and the Pooling and Servicing Agreement (collectively referred to in this subsection (e) as the "Agreements"), ---------- and the Certificates and had at all times, and now has, the power, authority and legal right to acquire, own and transfer the Receivables; (ii) The Bank is duly qualified to do business and is in good standing, and under state laws, as they are currently interpreted and enforced, has obtained all necessary licenses and approvals in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would materially and adversely affect the enforceability of any Receivable by the Bank or the Trustee or would adversely affect the ability of the Bank to perform its obligations under the Agreements or the Certificates; (iii) The Certificates have been duly authorized, executed and delivered by the Bank and, when duly authenticated by the Trustee in accordance with the terms of the Pooling and Servicing Agreement and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be validly issued and outstanding and entitled to the benefits provided by the Pooling and Servicing Agreement; (iv) Each of the Agreements has been duly authorized, executed and delivered by the Bank and constitutes the legal, valid and binding agreement of the Bank enforceable against the Bank in accordance with its terms, subject, as to enforceability to (A) the effect of bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and other similar laws relating to or affecting the rights and remedies of creditors generally, and (B) the application of principles of equity (regardless of whether considered and applied in a proceeding in equity or at law) and the rights and powers of the FDIC; (v) The Trust is not now, and immediately following the sale of the Certificates pursuant to the Underwriting Agreement will not be, required to register under the 1940 Act; (vi) No consent, approval, authorization or order of any governmental agency or body is required for (A) the execution, delivery and performance by the Bank of its obligations under the Agreements or the Certificates, or (B) the issuance or sale of the Certificates, except such as have been obtained under the Act and as may be required under state securities or blue sky laws in connection with the purchase and distribution of the Certificates by the Underwriters and the filing of Uniform Commercial Code financing statements with respect to the Receivables and the approval of the Office of the State Bank Commissioner of the State of Delaware; (vii) To the best knowledge of such counsel, neither the execution and delivery of the ~~Shares on~~ Agreements or the Certificates by the Bank nor the performance by the Bank of the transactions therein contemplated nor the fulfillment of the terms thereof does or will result in any violation of any statute or regulation or any order or decree of any court or governmental authority binding upon the Bank or its property, or conflict with, or result in a breach or violation of any term or provision of, or result in a default under any of the terms and provisions of, the Bank's charter or by-laws or any material indenture, loan agreement or other material agreement to which the Bank is a party or by which the Bank is bound; (viii) To the knowledge of such counsel after due investigation, there are no legal or governmental proceedings pending to which the Bank is a party or to which the Bank is subject which, individually or in the ~~manner~~ aggregate (A) would have a material adverse effect on the ability of the Bank to perform its obligations under the Agreements or the Certificates, (B) assert the invalidity of the Agreements or the Certificates, (C) seek to prevent the issuance, sale or delivery of the Certificates or any of the transactions contemplated by the Agreements or (D) seek to affect adversely the federal income tax or ERISA attributes of the Certificates described in the Prospectus; (ix) The Registration Statement and the Prospectus (except for the financial statements, financial schedules and other financial and operating data included therein, as to which such counsel expresses no view) comply as to form with the Act and the Rules and Regulations; (x) The Registration Statement has become effective under the Act, and the Prospectus Supplement will be filed with the Commission pursuant to Rule 424(b) thereunder; and (xi) Such counsel has not independently verified and is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the information contained in the Registration Statement and Prospectus. Based upon discussion with the ~~Prospectus. (c) The Representatives shall not~~ Bank, its accountants and others, however, no facts have ~~advised the Company~~ come to its attention that cause it to believe that the ~~Registration Statement or~~ Prospectus (except for the financial statements, financial schedules and other financial and statistical data included therein, as to which such counsel expresses no view), contains an any untrue statement of a material fact ~~that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material~~ or omits to state a material fact ~~that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is~~ required to be stated therein or necessary in order to make the statements therein not misleading. (df) The ~~Representatives~~ Representative shall have received ~~opinions of Foley~~ a letter from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ~~Lardner~~▇▇▇▇ LLP, special ~~couns~~counsel for the Bank, to the effect that the Representative may rely on those provisions of their opinions to ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") and Standard & Poor's Ratings ------- Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("Standard & Poor's") ----------------- with respect to certain matters relating to the transfer of the Receivables to the Trust, with respect to the perfection of the Trust's interest in the Receivables and with respect to other related matters. (g) The Representative shall have received an opinion of Skadden, Arps, Slate, ▇▇~~r the Company (as~~ ▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the ~~matters set forth below in subsections (i)~~Bank, (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the ~~Representatives~~Representative, dated the Closing Date and satisfactory in form and substance to the Representative and its counsel, to the effect that the Certificates will be treated as ~~the representatives of~~ indebtedness for Federal income tax purposes and for Delaware income tax purposes. (h) The Representative shall have received from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, ~~and~~ such opinion or opinions, dated the ~~First Closing Date or the Second~~ Closing Date, ~~as the case may be,~~ substantially to the effect that: (i) ~~The Company~~ Each of the Pooling and Servicing Agreement and the Spread Account Agreement (collectively referred to in this subsection (h) as the "Agreements") constitutes the valid and binding obligation of the Bank, ---------- enforceable against the Bank in accordance with its terms, except (x) to the extent that the enforceability thereof may be limited by (a) bankruptcy, insolvency, receivership, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and the rights of creditors of Delaware chartered banks as the same may be applied in the event of the bankruptcy, insolvency, receivership, reorganization, moratorium or other similar event in respect of the Bank, (b) general principles of equity (regardless of whether enforceability is ~~validly existing~~ considered in a proceeding at law or in equity) and (c) the qualification that certain of the remedial provisions of the Agreements may be unenforceable in whole or in part, but the inclusion of such provisions does not affect the validity of the Agreements taken as a ~~corporation in good standing under the laws of Delaware~~whole, ~~with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus~~ and the ~~Registration Statement~~Agreements, together with applicable law, contain adequate provisions for the practical realization of the benefits of the security created thereby and (y) such counsel expresses no opinion as to the enforceability of any rights to contribution or indemnification which are violative of public policy underlying any law, rule or regulation; (ii) The ~~authorized capital stock~~ Certificates, when executed and authenticated in accordance with the terms of the ~~Company consists~~ Pooling and Servicing Agreement and delivered to and paid for by the Underwriters pursuant to this Agreement, will be duly and validly issued and outstanding and will be entitled to the benefits of ~~60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share,~~ the Pooling and ~~77,000,000 shares of preferred stock, $1.00 par value per share~~Servicing Agreement; (iii) ~~The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have~~ This Agreement has been duly ~~authorized~~ authorized, executed and ~~validly issued, are fully paid and nonassessable (except, to~~ delivered by the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rightsBank; (iv) ~~The Significant Subsidiary is validly existing as a corporation in good standing~~ Neither the execution, delivery or ~~active status under~~ performance by the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all Bank of the ~~issued~~ Agreements or this Agreement, nor the compliance by the Bank with the terms and ~~outstanding capital stock~~ provisions thereof or hereof, will contravene any provision of ~~the Significant Subsidiary~~any applicable law; (v) Based on such counsel's review of applicable laws, no governmental approval, which has not been obtained or taken and is not in full force and effect, is required to authorize or is required in connection with the execution, delivery or performance of the Agreements by the Bank; (vi) The ~~certificates for~~ Certificates, the ~~Shares~~ Agreements and this Agreement conform in all material respects to the descriptions thereof contained in the Prospectus; (vii) The Pooling and Servicing Agreement is not required to be ~~delivered hereunder conform~~ qualified under the Trust Indenture Act of 1939, as amended, and the Trust is not required to be registered under the 1940 Act; (viii) The statements in the Prospectus under the heading "Certain Legal Aspects of the Receivables", to the extent that they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct in all material respects; and (ix) Each of the Registration Statement, as of its effective date, and the Prospectus, as of its date, appeared on its face to be appropriately responsive in all material respects to the requirements of the ~~Delaware General Corporation Law~~ Act and the ~~rules~~ General Rules and ~~regulations of~~ Regulations under the ~~New York Stock Exchange; and when duly countersigned by the Company's transfer agent~~Act, ~~and delivered~~ except that in each case such counsel expresses no opinion as to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending therein or ~~threatened legal or governmental proceedings that are required to be described in the Registration Statement~~ excluded therefrom or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit exhibits to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and ~~that, although~~ such counsel ~~is not verifying, is not passing upon and~~ does not assume any responsibility for the accuracy, completeness or fairness of the statements contained ~~or incorporated by reference into~~ in the Registration Statement or and the Prospectus. Such opinion shall also state that such counsel has participated in conferences with officers and representatives of the Bank, counsel for the Bank, representatives of the independent accountants of the Bank and the Underwriters at which the contents of the Prospectus and related matters were discussed and, although such counsel need not pass upon, and need not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Prospectus and shall have made no independent check or verification thereof, except for those made under the caption "Certain Legal Aspects of the Receivables" to the extent set forth in paragraph (viii) above, on the basis of the ~~information~~ foregoing, no facts shall have come to such counsel's attention that ~~was developed in the course of the performance of~~ shall have led such ~~services, they have no reason~~ counsel to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus~~, or any amendment or supplement thereto including any document incorporated by reference therein~~, as of its ~~issue date and as of the Closing Date~~date, contained ~~or contains any~~ an untrue statement of a material fact or omitted ~~or omits~~ to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not ~~misleading (provided~~ misleading, except that such counsel need not express no an opinion or belief ~~regarding~~ with respect to the financial ~~statements and related~~ statements, schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information ~~has come to the attention of the attorneys~~ included in such ~~firm who have been involved in the preparation~~ Prospectus or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Dateexcluded therefrom. (ei) ~~The Representatives shall have received an opinion of Michael Best~~ McGuire, Woods, Battle & ~~Friedrich LLP,~~ ▇▇▇▇▇▇~~▇ ▇▇▇~~ , L.L.P., counsel for The Bank of New York, a New York banking corporation ("BONY"), in connection with the ~~▇▇▇▇▇▇▇▇ters~~Agency Agreement dated as of December 4, ~~dated~~ 1995 between BONY and the ~~First Closing Date or~~ Trustee (the ~~Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require~~"Agency ------ Agreement"), and counsel for the ~~Company~~ Trustee, shall have furnished to ~~such counsel such documents~~ the --------- Representative their written opinion, addressed to the Representative and ~~shall have exhibited to them such papers and records as such counsel reasonably request for~~ dated the ~~purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each~~ Closing Date, ~~a certificate of Kenneth W. Krueger~~in form and substance satisfactory to the Representative and its counsel, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, substantially to the effect that: (i) ~~The representations~~ BONY is a banking corporation duly organized, validly existing and ~~warranties~~ in good standing under the laws of the ~~Company set forth in Section 2 hereof are true~~ State of New York and ~~correct as of~~ has the ~~date of this Agreement~~ corporate power and ~~as of~~ authority to execute, deliver and perform its obligations under the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificateAgency Agreement; (ii) ~~The Commission has not issued an order preventing or suspending~~ the ~~use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has~~ Certificates have been ~~issued; and~~ duly authenticated by BONY pursuant to the ~~knowledge of~~ Agency Agreement and in accordance with the ~~respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction~~Pooling and Servicing Agreement; (iii) ~~Each~~ the Trustee is a banking corporation duly organized, validly existing and in good standing under the laws of the ~~respective signatories~~ State of Delaware and has ~~examined~~ the ~~Registration Statement~~ corporate power and authority to execute, deliver and perform its obligations under the Pooling and Servicing Agreement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set fo

Appears in 1 contract

Sources: Underwriting Agreement (First Usa Credit Card Master Trust)

Conditions of the Obligations of the Underwriters. The obligations of the ~~several~~ Underwriters ~~under this Agreement shall~~ to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of the date hereof~~ Depositor and ~~as of each Closing Date~~DTFS herein, to the accuracy of the ~~statements~~ certifications of officers of the ~~Company's officers~~ Depositor and DTFS made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Depositor of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The Registration Statement shall ~~have been declared~~ be effective by at the ~~Commission not later than 5:30 p.m.~~Execution Time, ~~Washington, D.C. time,~~ and on the ~~date of this Agreement~~Closing Date, or such later time and date as shall have been consented to by the Representatives, which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued by and no proceedings for that purpose or pursuant to Section 8A of the ~~Commission or any state securities commission nor~~Act shall have been instituted or, to the knowledge of the ~~Company~~Depositor or the Representatives, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (b) Each of the Preliminary Prospectus and the Prospectus and any supplements thereto shall have been filed (if required) with the Commission in accordance with the Rules and Regulations and Section 5(a) hereof. The Pricing Free Writing Prospectus shall have been filed with the Commission in accordance with Rule 433(d) of the Rules and Regulations and neither the Depositor nor DTFS has disseminated any other free writing prospectus that is required to be filed with the Commission. (c) On or prior to the date of this Agreement and on or prior to the Closing Date, the Representatives shall have received a letter or letters, dated as of the date of this Agreement and as of the Closing Date, respectively, from a nationally recognized firm of independent registered public accountants, who are independent of DTFS and reasonably acceptable to the Representatives, substantially in the form of the drafts to which the Representatives have previously agreed and otherwise in form and substance satisfactory to the Representatives and their counsel. (d) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred (i) any ~~change or development involving~~change, or ~~which could be reasonably expected to involve~~any development involving a prospective change, ~~a Material Adverse Effect~~in or affecting particularly the business or properties of the Issuer, ~~whether~~ the Depositor or ~~not arising from transactions~~ DTFS which, in the ~~ordinary course~~ judgment of ~~business~~the Representatives, ~~and~~ materially impairs the investment quality of the Notes or makes it impractical or inadvisable to market the Notes; (ii) any suspension or limitation of trading in securities generally on the ~~Company shall not have sustained~~ New York Stock Exchange, or any ~~loss~~ setting of minimum or ~~interference from~~ maximum prices for trading on such exchange, or a material disruption in commercial banking or securities settlement or clearance services in the United States or with respect to Clearstream or Euroclear systems in Europe; (iii) any ~~labor dispute~~general commercial banking moratorium declared by Federal, ~~strike~~Delaware or New York authorities; or (iv) any outbreak or escalation of major hostilities in which the United States is involved, ~~fire~~any declaration of war by Congress, ~~flood~~or any other substantial national or international calamity or emergency if, ~~windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect~~in the reasonable judgment of the Representatives, the effect of ~~which~~ any such outbreak, escalation, declaration, calamity or emergency on the ~~Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make~~ U.S. financial markets makes it ~~impracticable~~ impractical or inadvisable to proceed with the ~~public offering or~~ offering, sale of and payment for the ~~delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus~~Notes. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (de) The Representatives shall have received opinions of ~~Foley & Lardner, special couns~~▇▇▇▇▇▇ ▇▇r ▇▇▇▇ LLP, counsel to DTFS, the ~~Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)),~~ Depositor and the ~~Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii)~~ Issuer addressed to the Representatives, as dated the ~~representatives~~ Closing Date and satisfactory in form and substance to the Representatives relating to customary corporate and enforceability, securities law, security interest, and true sale/nonconsolidation matters. The Representatives shall have also received from such counsel a negative assurance letter regarding the contents of the ~~Underwriters~~Registration Statement, the Preliminary Prospectus and the Final Prospectus), satisfactory in form and substance to the Representatives. (f) The Representatives shall have received opinions of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., counsel to DTFS and the Depositor and such other counsel acceptable to the Underwriters addressed to the Representatives, dated the Closing Date and satisfactory in form and substance to the Representatives and their counsel, substantially to the effect that: (i) DTFS has been duly formed and is validly existing in good standing as a limited liability company under the laws of the State of Delaware. Under the Delaware Limited Liability Company Act (6 Del. C. §18-101, et seq.) (the “Delaware LLC Act”) and the Limited Liability Company Agreement of DTFS (the “DTFS LLC Agreement”), DTFS has all necessary limited liability company power and authority to execute and deliver this Agreement and each Basic Document to which it is a party, and to perform its obligations hereunder and thereunder. (ii) The Depositor has been duly formed and is validly existing in good standing as a limited liability company under the laws of the State of Delaware. Under the Delaware LLC Act and the Limited Liability Company Agreement of the Depositor (the “Depositor LLC Agreement”), the Depositor has all necessary limited liability company power and authority to execute and deliver this Agreement, and the Basic Documents to which it is a party, and to perform its obligations hereunder and thereunder. (iii) Under the Delaware LLC Act and the DTFS LLC Agreement, the execution and delivery by DTFS of this Agreement and the Basic Documents to which it is a party, and the performance of its obligations hereunder and thereunder, have been duly authorized by all necessary limited liability company action on the part of DTFS. (iv) Under the Delaware LLC Act and the Depositor LLC Agreement, the execution and delivery by the Depositor of this Agreement and the Basic Documents to which it is a party, and the performance of its obligations hereunder and thereunder, have been duly authorized by all necessary limited liability company action on the part of the Depositor. (v) The execution and delivery by DTFS of this Agreement and the Basic Documents to which it is a party, and the performance by DTFS of its obligations hereunder and thereunder, do not violate (x) any Delaware law, rule or regulation or (y) the Certificate of Formation of DTFS or the DTFS LLC Agreement. (vi) The execution and delivery by the Depositor of this Agreement and the Basic Documents to which it is a party, and the performance by the Depositor of its obligations hereunder and thereunder, do not violate (x) any Delaware law, rule or regulation or (y) the Certificate of Formation of the Depositor or the Depositor LLC Agreement. (vii) No authorization, consent, approval or order of any Delaware court or any Delaware governmental or administrative body is required to be obtained by DTFS solely in connection with the execution and delivery by DTFS of this Agreement or any Basic Document to which it is a party, or the performance by DTFS of its obligations hereunder or thereunder. (viii) No authorization, consent, approval or order of any Delaware court or any Delaware governmental or administrative body is required to be obtained by the Depositor solely in connection with the execution and delivery by the Depositor of this Agreement or any Basic Document to which it is a party, or the performance by the Depositor of its obligations hereunder or thereunder. (g) The Representatives shall have received opinions of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., counsel to the Issuer and such other counsel acceptable to the Underwriters addressed to the Representatives, dated the ~~First~~ Closing Date or and satisfactory in form and substance to the ~~Second Closing Date~~Representatives and their counsel, ~~as the case may be,~~ substantially to the effect that: (i) The ~~Company~~ Issuer has been duly formed and is validly existing as a ~~corporation in good standing~~ statutory trust under the ~~laws of Delaware~~Delaware Statutory Trust Act, ~~with full corporate~~ 12 Del. C. § 3801, et seq. (the “Delaware Trust Act”), and has the power and authority ~~to own, lease and operate its properties and conduct its business as presently conducted and as described in~~ under the ~~Prospectus~~ Trust Agreement and the ~~Registration Statement;~~Delaware Trust Act to execute, deliver and perform its obligations under the Basic Documents to which it is a party, to issue the Certificate and the Notes and to grant the Collateral to the Indenture Trustee as security for the Notes. (ii) The ~~authorized capital stock of~~ Basic Documents to which the ~~Company consists of 60,000,000 shares of Common Stock~~Issuer is a party, ~~par value $1.00 per share~~the Certificates and the Notes have been duly authorized, ~~14,000,000 shares of Class A common stock, par value $5.00 per share,~~ executed and ~~77,000,000 shares of preferred stock, $1.00 par value per share;~~delivered by the Issuer. (iii) The ~~issued~~ Trust Agreement constitutes a legal, valid and ~~outstanding shares of capital stock~~ binding obligation of the ~~Company immediately prior~~ Depositor and the Owner Trustee, enforceable against the Depositor and the Owner Trustee, in accordance with its terms except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability. (iv) When the ~~sale of the Shares hereunder~~ Certificates have been duly ~~authorized~~ executed by the Owner Trustee on behalf of the Issuer, authenticated by the Owner Trustee and delivered to the Depositor in accordance with the Trust Agreement, the Certificates will be validly issued, ~~are~~ fully paid and, subject to customary qualifications described therein, nonassessable undivided beneficial interests in the assets of the Issuer and ~~nonassessable~~ will entitle the Certificateholder to the benefits of the Trust Agreement. (~~except~~v) Neither the execution, delivery and performance by the Issuer of any of the Basic Documents to which it is a party, the Certificates or the Notes, nor the consummation by the Issuer of any of the transactions contemplated thereby, requires the consent or approval of, the withholding of objection on the part of, the giving of notice to, the filing, registration or qualification with, or the taking of any other action in respect of, any governmental authority or agency of the State of Delaware, other than the fling of the Certificate of Trust with the Secretary of State pursuant to the Trust Agreement and the filing of a financing statement on form UCC‑1 with the Secretary of State pursuant to the Indenture. (vi) Neither the execution, delivery and performance by the Issuer of the Basic Documents to which it is a party, the Certificates or the Notes, nor the consummation by the Issuer of any of the transactions contemplated thereby, will conflict with or result in a breach of, or constitute a default under the provisions of the Trust Agreement or any law, rule or regulation of the State of Delaware applicable to the Issuer. (vii) Under § 3805(b) of the Delaware Trust Act, no creditor of any Certificateholder shall have any right to obtain possession of, or otherwise exercise legal or equitable remedies with respect to, the Owner Trust Estate except in accordance with the terms of the Trust Agreement. (h) The Representatives shall have received an opinion addressed to them by ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, in its capacity as special tax counsel to the Issuer, dated the Closing Date, substantially to the effect that the statements in each of the Preliminary Prospectus and the Prospectus under the headings “Summary––Tax Status” (to the extent ~~applicable~~relating to Federal income tax consequences) and “Material Federal Income Tax Consequences,” to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, ~~as otherwise provided in Section 180.0622(2)(b)~~ have been prepared or reviewed by such counsel and accurately describe the material Federal income tax consequences to holders of the ~~Wisconsin Business Corporation Law~~Notes, ~~as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described~~ and the statements in ~~the Prospectus, other rights to subscribe for or purchase any shares of capital stock~~ each of the ~~Company and~~Preliminary Prospectus and the Prospectus under the heading “Certain ERISA Considerations,” to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, have been prepared or reviewed by such counsel and accurately describe the material consequences to ~~such counsel's knowledge, no shares of capital stock~~ holders of the ~~Company~~ Notes under ERISA. (i) The Representatives shall have ~~been issued~~ received an opinion addressed to them of in-house counsel to the Asset Representations Reviewer, dated the Closing Date and satisfactory in ~~violation~~ form and substance to the Representatives and their counsel. (j) The Representatives shall have received a negative assurance letter addressed to them of [●], counsel to the Underwriters, dated the Closing Date, concerning the Time of Sale Information and the Prospectus in form and substance reasonably satisfactory to the Representatives and their counsel. (k) The Representatives shall have received an opinion addressed to them, the Depositor and the Servicer of [●], in its capacity as counsel to the Indenture Trustee, dated the Closing Date, in form and substance satisfactory to the Representatives and their counsel. (l) The Representatives shall have received an opinion addressed to them, the Depositor and the Servicer of [●], counsel to the Owner Trustee, and such ~~rights;~~other counsel acceptable to the Representatives and their counsel, dated the Closing Date and satisfactory in form and substance to the Representatives and their counsel, when taken together, substantially to the effect that: (i) The Owner Trustee is validly existing as [a national banking association under the federal laws of the United States of America]. (ii) The Owner Trustee has the power and authority to execute, deliver and perform its obligations under the Trust Agreement and to consummate the transactions contemplated thereby. (iii) The Owner Trustee has duly authorized, executed and delivered the Trust Agreement. (iv) The ~~Significant Subsidiary~~ Trust Agreement constitutes a valid and binding obligation of the Owner Trustee enforceable against the Owner Trustee in accordance with its terms. (v) Neither the execution, delivery and performance by the Owner Trustee of the Trust Agreement nor the consummation of the transactions contemplated thereby, is ~~validly existing as a corporation~~ in ~~good standing~~ violation of the articles of association or ~~active status~~ bylaws of the Owner Trustee or of any law, governmental rule or regulation of the State of Delaware or of the federal laws of the United States of America governing the trust powers of the Owner Trustee. (vi) Neither the execution, delivery and performance by the Owner Trustee of the Trust Agreement nor the consummation of the transactions contemplated thereby, requires the consent or approval of, the withholding of objection on the part of, the giving of notice to, the filing, registration or qualification with, or the taking of any other action in respect of, any governmental authority or agency under the laws of ~~Tennessee~~the State of Delaware or the federal laws of the United States of America governing the trust powers of the Owner Trustee. (m) The Representatives shall have received certificates dated the Closing Date of any two of the Chairman of the Board, ~~with full corporate power~~ the President, the Executive Vice President, any Vice President, the Treasurer, any Assistant Treasurer, the Secretary, the principal financial officer or the principal accounting officer of each of the Depositor and ~~authority to own~~DTFS, ~~lease and operate~~ in its ~~properties and to conduct its business as presently conducted~~ individual capacity and as ~~described~~ Servicer, in which such officers shall state that, to the best of their knowledge after reasonable investigation, (i) the representations and warranties of the Depositor, DTFS and/or the Servicer, as the case may be, contained in this Agreement are true and correct and the representations and warranties of the Depositor, DTFS and/or the Servicer, as the case may be, contained in the ~~Prospectus~~ Trust Agreement, the Receivables Purchase Agreement and the ~~Registration Statement; to such counsel's knowledge~~Sale and Servicing Agreement, ~~the Company owns directly or indirectly~~ as applicable, are true and ~~beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform~~ correct in all material ~~respects~~ respects, that the Depositor, DTFS and/or the Servicer, as the case may be, has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the ~~requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent~~Closing Date, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or pursuant to Section 8A of the Act have been instituted or are ~~threatened~~ contemplated by the ~~Commission;~~ Commission and (ii) other than as described in such certificate, since the ~~Registration Statement and~~ Time of Sale, no material adverse change, or development involving a prospective material adverse change, in or affecting particularly the ~~Prospectus and any amendment~~ business or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements properties of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the ActIssuer, the ~~Exchange Act~~Depositor, ~~applicable Blue Sky Laws and~~ DTFS and/or the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing DateServicer, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such mattershas occurred. (fn) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, evidence satisfactory to it of the ~~Company,~~ filing of all UCC financing statements necessary to perfect the transfer of the interest of DTFS in ~~their respective capacities as such,~~ the Receivables and the proceeds thereof to the ~~effect that: (i) The representations and warranties~~ Depositor, the transfer of the ~~Company set forth in Section 2 hereof are true and correct as~~ interest of the ~~date of this Agreement~~ Depositor in the Receivables and as the proceeds thereof to the Issuer and the grant of the ~~date of such certificate,~~ security interest by the Issuer in the Receivables and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set fo

Appears in 1 contract

Sources: Underwriting Agreement (Daimler Trucks Retail Receivables LLC)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Firm ADSs on the First Closing Date and the Option Securities to be purchased on each Option Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Shareholders herein ~~set forth~~ (as ~~of the date hereof and as of each~~ though made on such Closing Date), to the accuracy of the statements of Company officers, each Selling Shareholder, as the ~~Company's officers~~ case maybe, and the Depositary made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company and the Selling Shareholders of ~~its~~ their obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Representatives shall have ~~been declared effective by~~ received letters, dated, respectively, the ~~Commission~~ date hereof and at each Closing, of Deloitte Touche Tohmatsu CPA Ltd., confirming that they are registered public accounting firm and independent public accountants within the meaning of the Securities Laws and substantially in the form attached as Annex C hereto; provided in any letter dated a Closing Date, the specified date referred to in Annex C shall be a date no more than three days prior to such Closing Date. (b) If the Effective Time of the Additional Registration Statement, if any, is not prior to the execution and delivery of this Agreement, such Effective Time shall have occurred not later than ~~5:30 p.m.~~10:00 P.M., ~~Washington, D.C.~~ New York time, on the date of this ~~Agreement~~Agreement or, if earlier, the time the Final Prospectus is finalized and distributed to any Underwriter, or shall have occurred at such later ~~time and~~ date as shall have been consented to by the Representatives~~, which consent~~ . The Final Prospectus shall ~~be deemed to~~ have been ~~given if~~ filed with the Commission in accordance with the Rules and Regulations and Section 4(a) of this Agreement. The ADS Registration Statement shall have been declared effective not later than 10:00 P.M., New York time, on ~~or before~~ the date ~~and time requested in the acceleration request submitted on behalf~~ of ~~the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act~~ this Agreement or such later date as shall have been ~~timely made;~~ consented to by the Representatives. Prior to such Closing Date, no stop order suspending the effectiveness of a Registration Statement or the ADS Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Company or the Representatives, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred (i) any ~~change or development involving~~change, or ~~which could be reasonably expected to involve~~any development or event involving a prospective change, ~~a Material Adverse Effect, whether or not arising from transactions~~ in the ~~ordinary course~~ condition (financial or otherwise), results of operations, business, ~~and~~ properties or prospects or of the Company, the Subsidiaries and the Affiliated Entity taken as a whole which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to market the Offered ADSs; (ii) any downgrading in the rating of any debt securities of the Company ~~shall not have sustained~~ by any ~~loss~~ “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g)), or ~~interference from~~ any ~~labor dispute~~public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, ~~strike~~and no implication of a possible downgrading, ~~fire~~of such rating); (iii) a change in U.S., ~~flood~~the PRC, ~~windstorm~~the British Virgin Islands, ~~accident~~ the United Kingdom or international financial, political or economic conditions or currency exchange rates, exchange controls, or taxation, including any transfer taxes, duties, or withholding obligations the effect of which is such as to make it, in the judgment of the Representatives, impractical to market or to enforce contracts for the sale of the Offered ADSs, whether in the primary market or in respect of dealings in the secondary market; (iv) any suspension or material limitation of trading in securities generally on the New York Stock Exchange or the London Stock Exchange (including the Alternative Investment Market of the London Stock Exchange), or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. Federal, New York, PRC, the British Virgin Islands or the United Kingdom authorities; (vii) any major disruption of settlements of securities, payment or clearance services in the United States or the United Kingdom; (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, the British Virgin Islands, the United Kingdom or the PRC, any declaration of war by the U.S. Congress, the PRC, the United Kingdom or any other national or international calamity ~~(whether~~ or ~~not insured) or from any court or governmental action~~emergency if, ~~order or decree having a Material Adverse Effect~~in the judgment of the Representatives, the effect of ~~which on the Company, in~~ any such ~~case described in clause (i)~~ attack, outbreak, escalation, act, declaration, calamity or ~~(ii) above,~~ emergency is ~~in the reasonable and good faith opinion of the Representatives so material and adverse~~ such as to make it ~~impracticable~~ impractical or inadvisable to ~~proceed with~~ market the ~~public offering~~ Offered ADSs or to enforce contracts for the ~~delivery~~ sale of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleadingOffered ADSs. (d) The Representatives shall have received ~~opinions~~ an opinion, dated such Closing Date, of ~~Foley & Lardner, special couns~~▇▇▇▇▇▇ & ▇▇r ▇▇▇▇▇ LLP, United States counsel for the ~~Company (as~~ Company, addressed to the ~~matters set forth below~~ Underwriters, substantially in ~~subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and~~ the ~~Vice President, General Counsel and Secretary of the Company (as to the matters~~ form set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing DateAnnex D hereto. (e) The Representatives shall have received an opinion, dated such Closing Date, of Boss & Young, PRC counsel for the Company, addressed to the Underwriters, substantially in the form set forth in Annex E hereto. (f) The Representatives shall have received an opinion dated such Closing Date, of ~~Michael Best~~ ▇▇▇▇▇▇ Westwood & ~~Friedrich LLP~~Reigels, British Virgin Islands counsel for the Company, addressed to the Underwriters, substantially in the form set forth in Annex F hereto. (g) The Representatives shall have received an opinion dated such Closing Date, of Pinsent Masons, United Kingdom counsel for the Company, addressed to the Underwriters, substantially in the form set forth in Annex G hereto. (h) The Representatives shall have received the opinion dated such Closing date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ~~▇▇▇~~ LLP, United States counsel for the Selling Shareholders, addressed to the Underwriters, substantially in the form set forth in Annex H hereto. (i) The Representatives shall have received an opinion dated such Closing date, of ▇▇▇▇▇▇ Westwood & Reigels, British Virgin Islands counsel for certain Selling Shareholders, addressed to the Underwriters, in the form and substance reasonably satisfactory to the Representations and as set forth in Annex I hereto. (j) The Underwriters shall have received an opinion, dated such Closing Date, from ▇▇▇~~ters~~▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Depositary, addressed to the Underwriters, substantially in the form set forth in Annex J hereto. (k) The Representatives shall have received from Shearman & Sterling LLP, United States counsel for the Underwriters, such opinion or opinions, dated ~~the First Closing Date or the Second~~ such Closing Date, as addressed to the ~~case may be~~Underwriters, with respect to ~~the sale of the Shares hereunder, the Registration Statement and other related~~ such matters as the Representatives may ~~reasonably~~ require, and the Selling Shareholders and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, Shearman & Sterling LLP may rely as to the incorporation of the Company and all other matters governed by British Virgin Islands laws upon the opinion of ▇▇▇▇▇▇ Westwood & Riegels and as to all matters governed by the laws of the PRC upon the opinions of Boss & Young referred to above and the opinions of Haiwen & Partners referred to below. (l) The Representatives shall have ~~exhibited~~ received from Haiwen & Partners, PRC counsel to ~~them~~ the Underwriters, such ~~papers~~ opinion or opinions, dated such Closing Date, with respect to such matters as the Representatives may require, and ~~records as~~ the Selling Shareholders and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. (fm) The Depositary shall have furnished or caused to be furnished to the Underwriters a certificate satisfactory to the Representatives of one of its authorized officers with respect to the deposit with it of the Shares represented by the ADSs against issuance of the ADRs evidencing the ADSs, the execution, issuance, countersignature and delivery of the ADRs evidencing the ADSs pursuant to the Deposit Agreement and such other matters related thereto as the Representatives may reasonably request. (n) The Company and the Depositary shall have executed and delivered the Deposit Agreement and the Deposit Agreement shall be in full force and effect and the Company and the Depositary shall have taken all action necessary to permit the deposit of the Shares and the issuance of the ADSs in accordance with the Deposit Agreement. (o) The Representatives shall have received ~~on each~~ a certificate, dated such Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the ~~Company,~~ Chief Executive officer and the Chief Financial Officer of the Company in ~~their respective capacities as such, to~~ which such officers shall state that: the ~~effect that: (i) The~~ representations and warranties of the Company ~~set forth~~ in ~~Section 2 hereof~~ this Agreement are true and ~~correct as of the date of this Agreement and as of the date of such certificate, and~~ correct; the Company has complied ~~in all material respects~~ with all ~~the~~ agreements and satisfied all ~~the~~ conditions on its part to be performed or satisfied ~~by it~~ hereunder at or prior to ~~the date of~~ such ~~certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto~~Closing Date; no stop order suspending the effectiveness of any Registration Statement or the ADS Registration Statement has been ~~issued;~~ issued and ~~to the knowledge of the respective signatories,~~ no proceedings for that purpose have been ~~initiated or~~ instituted or, to the best of their knowledge and after reasonable investigation, are ~~pending under~~ contemplated by the ~~Act or under~~ Commission, the ~~Blue Sky Laws~~ Additional Registration Statement (if any) satisfying the requirements of ~~any jurisdiction;~~ subparagraphs (~~iii~~1) ~~Each~~ and (3) of Rule 462(b) was timely filed pursuant to Rule 462(b), including payment of the ~~respective signatories~~ applicable filing fee in accordance with Rule 111(a) or (b) of Regulation S-T of the Commission; and, subsequent to the date of the most recent financial statements in the General Disclosure Package, there has ~~examined~~ been no material adverse change, nor any development or event involving a prospective material adverse change, in the ~~Registration Statement~~ condition (financial or otherwise), results of operations, business, properties or prospects of the Company, the Subsidiaries and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of Affiliated Entity taken as a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be whole except as set forth in ~~an amended~~ the General Disclosure Package or ~~supplemented prospectus~~ as described in such certificate. (p) On or ~~in an amendment~~ prior to the ~~Registration Statement~~ date of this Agreement, the Representatives shall have received lock-up letters from each of the directors and executive officers of the Company and the existing beneficial owners of the Shares listed on Annex B-I, in each case substantially in the form attached hereto as Annex B-II. (q) The Representatives shall have received a certificate, dated such Closing Date, of an authorized representative of each Selling Shareholder in which such authorized representative shall state that: the representations and warranties of such Selling Shareholder in this Agreement are true and correct; and the Selling Shareholders have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such Closing Date. (r) On the date hereof, the Selling Shareholder shall have furnished for review by the Representatives executed copies of the Power of Attorney and Custody Agreement. (s) On or prior to the First Closing Date, the Representatives shall have received a letter of the Custodian stating that ~~has not~~ they will deliver to each Selling Shareholder a United States Treasury Department Form 1099 (or other applicable form or statement specified by the United States Treasury Department regulations in lieu thereof) on before January 31, 2009. (t) To avoid a 28% backup withholding tax each Selling Shareholder will deliver to the Representatives a properly completed and executed United States Treasury Department Form W-9, W-8BEN (or other applicable form or statement specified by Treasury Department regulations in lieu thereof to establish an exemption from backup withholding). (u) The ADSs shall have been ~~so set fo~~listed and admitted and authorized for trading on The New York Stock Exchange. (v) The Offered Shares represented by the Offered ADSs shall have been approved by AIM for admission for trading on AIM. (w) On or prior to the First Closing Date, the Offered ADSs shall be eligible for clearance and settlement through the facilities of DTC. The Selling Shareholders and the Company will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. The Representatives may in their sole discretion waive, on behalf of the Underwriters, compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of an Option Closing Date or otherwise.

Appears in 1 contract

Sources: Underwriting Agreement (ReneSola LTD)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Class A Certificates will be subject to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of the date hereof and as of each Closing Date~~Seller herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Seller made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Seller of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) ~~The Registration Statement~~ At the time this Agreement is executed and delivered by the Seller and at the Closing Date, [Deloitte & Touche LLP] shall have ~~been declared effective by~~ furnished to the ~~Commission~~ Representatives letters dated respectively as of the date of this Agreement and as of the Closing Date substantially in the forms of the drafts to which the Representatives previously agreed. (b) If the Effective Time is not prior to the execution and delivery of this Agreement, the Effective Time shall have occurred not later than ~~5:30~~ 10:00 p.m., ~~Washington, D.C.~~ New York time, on the date of this ~~Agreement,~~ Agreement or such later ~~time and~~ date as shall have been consented to by the Representatives. If the Effective Time is prior to the execution and delivery of this Agreement, ~~which consent shall be deemed to have been given if~~ the ~~Registration Statement~~ Prospectus shall have been ~~declared effective on or before~~ filed with the ~~date~~ Commission in accordance with the Rules and ~~time requested in~~ Regulations and Section 5(a) of this Agreement. Prior to the ~~acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made;~~ Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Seller, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faith. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the ProspectusCommission. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives You shall have received ~~opinions of Foley & Lardner~~an officer's certificate, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the ~~First Closing Date or the Second~~ Closing Date, as signed by the ~~case may be~~Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of the Seller representing and warranting that, to the ~~effect that: (i) The Company is validly existing~~ best of such officers' knowledge after reasonable investigation, as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the ~~Company consists of 60,000,000 shares of Common Stock~~Closing Date, ~~par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share,~~ the representations and ~~77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock~~ warranties of the ~~Company immediately~~ Seller in this Agreement are true and correct in all material respects, that the Seller has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform Closing Date in all material ~~respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent~~respects, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or or, to the best of their knowledge, are ~~threatened~~ contemplated by the Commission; . (d) Subsequent to the ~~Registration Statement~~ execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the ~~Prospectus~~ business or properties of the Seller, Nissan Motor Co. Ltd., Nissan Motor Corporation in U.S.A. ("NMC") or the Servicer which, in the judgment of the Representatives, materially impairs the investment quality of the Class A Certificates or makes it impractical or inadvisable to proceed with completion of the sale of and ~~any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except~~ payment for the ~~financial statements~~ Class A Certificates; (ii) any downgrading in the rating of any debt securities of NMC or any of its direct or indirect subsidiaries by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any such debt securities (other than an announcement with positive implications of a possible upgrading, and ~~schedules and~~ no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by Federal or New York authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other ~~statistical~~ substantial national or ~~financial data included therein~~international calamity or emergency if, ~~as to which such counsel need express no opinion) comply as to form~~ in ~~all material respects with~~ the ~~requirements~~ judgment of the ~~Act;~~ Representatives, the ~~conditions~~ effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for ~~use of Form S-3, set forth in~~ the ~~General Instructions thereto, have been satisfied;~~Class A Certificates. (~~vii~~e) To ▇▇▇ ▇▇▇▇▇, Esq., General Counsel of the Seller, or other counsel satisfactory to the Representatives in their reasonable judgment, shall have furnished to the Representatives such counsel's ~~knowledge~~written opinion, ~~there are no pending or threatened legal or governmental proceedings that are required to be described~~ dated the Closing Date, in substantially the ~~Registration Statement or~~ form set forth below, with such changes therein as counsel for the ~~Prospectus that are not so described, nor, to such counsel's knowledge,~~ Underwriters shall reasonably agree: (i) The Seller has been duly incorporated and is ~~there any transaction, relationship, agreement, contract or other document of~~ validly existing as a ~~character required to be described~~ corporation in ~~the Registration Statement or the Prospectus, or required to be filed~~ good standing under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description laws of the ~~Common Stock contained in the Company's Registration Statement on Form 8-A, filed~~ State of Delaware with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to ~~enter into~~ own its properties and ~~perform this Agreement;~~ conduct its business as described in the ~~performance~~ Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or the ownership of its property requires such qualification. (ii) The Servicer has been duly incorporated and is validly existing as a corporation in good standing under the laws of the ~~Company's obligations hereunder~~ State of California with full corporate power and authority to own its properties and conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or the ownership of its property requires such qualification. (iii) The Pooling and Servicing Agreement and the ~~consummation of the transactions described herein~~ Purchase Agreement have been duly ~~authorized~~ authorized, executed and delivered by the ~~Company~~ Servicer. (iv) The indemnification agreement dated the date hereof (the "Indemnification Agreement") between the Servicer and the Representatives, on behalf of the several Underwriters, has been duly authorized, executed and delivered by ~~all necessary corporate action~~ the Servicer; and this Agreement has been duly authorized, executed and delivered by the Seller. (v) The Pooling and ~~on behalf of~~ Servicing Agreement and the ~~Company~~Purchase Agreement have been duly authorized, executed and ~~is a legal~~delivered by the Seller. (vi) The Yield Supplement Agreement has been duly authorized, ~~valid~~ executed and ~~binding agreement of~~ delivered by the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, Seller and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution Nissan Motor Acceptance Corporation (in its own capacity and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASDnot in its capacity as Servicer);. (xvii) The execution, delivery and performance of this Agreement by the ~~Company~~ Seller, the Pooling and Servicing Agreement and the Purchase Agreement by the Seller and the Servicer and the Indemnification Agreement by the Servicer will ~~not: (A) violate any provisions~~ not conflict with or result in a breach of ~~the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate~~ any of the terms or provisions ~~of, or result in the breach, modification or termination~~ of, or constitute a default under, or result in the creation or imposition of any ~~agreement~~lien, ~~lease~~charge or encumbrance upon any of the properties or assets of the Seller or the Servicer, ~~franchise~~pursuant to the terms of the Certificate or Articles of Incorporation or the By-Laws of the Seller or the Servicer, ~~license~~any statute, ~~indenture~~any rule, ~~permit, mortgage, deed~~ regulation or order of ~~trust, other evidence~~ any governmental agency or body or any court having jurisdiction over the Seller or the Servicer or any of ~~indebtedness~~ their respective properties or ~~other~~ any material agreement or instrument to which the ~~Company~~ Seller or the ~~Significant Subsidiary~~ Servicer is a party or by which either the ~~Company~~ Seller or the ~~Significant Subsidiary,~~ Servicer or any of their respective ~~owned or leased property~~ properties is bound. (viii) No authorization, ~~and which is filed~~ approval or ~~incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation~~ consent of any ~~court, regulatory~~ court or governmental ~~body, arbitrator, administrative~~ agency or ~~other instrumentality~~ authority is necessary in connection with the execution, delivery and performance by the Seller of this Agreement, the Pooling and Servicing Agreement or the Purchase Agreement or by the Servicer of the ~~United States having jurisdiction over~~ Indemnification Agreement, the ~~Company~~ Pooling and Servicing Agreement or the ~~Significant Subsidiary (assuming compliance with all applicable federal~~ Purchase Agreement, except such as may be required under the Act or the Rules and Regulations and state securities laws);, and except for such authorizations, approvals or consents (specified in such opinion) as are in full force and effect as of the Effective Date and the Closing Date. (xiix) To The Class A Certificates have been duly authorized and, when executed and authenticated by the Trustee in accordance with the Pooling and Servicing Agreement and delivered and paid for pursuant to this Agreement, the Class A Certificates will constitute valid and binding obligations of the Trust entitled to the benefits provided by the Pooling and Servicing Agreement. (x) Nothing has come to such counsel's ~~knowledge, there are no holders of Common Stock or other securities~~ attention that would cause it to believe that as of the ~~Company, or securities that are convertible or exchangeable into Common Stock or other securities of~~ Effective Date and at the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of Closing Date the Registration Statement and the Prospectus (other than the financial statements and ~~related matters were discussed and reviewed~~the other accounting information contained therein or omitted therefrom, ~~and that, although~~ as to which such counsel ~~is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements~~ need express no belief) contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains contain any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements ~~therein~~ therein, in the light of the circumstances under which they were made, not misleading, or that the descriptions therein of statutes and ~~since~~ governmental proceedings and contracts and other documents are inaccurate and do not fairly present the ~~date on which the Registration Statement was initially filed, no event has occurred that was~~ information required to be ~~set forth in~~ shown therein. (xi) Such counsel does not know of any contract or other document of a character required to be filed as an ~~amended or supplemented prospectus or in an amendment~~ exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which is not filed or described as required. (xii) There are no legal or governmental proceedings pending to which the Seller or the Servicer is a party or of which any property of the Seller or the Servicer is the subject, and no such proceedings are known by such counsel to be threatened or contemplated by governmental authorities or threatened by others, (A) that are required to be disclosed in the Registration Statement or (B)(1) asserting the invalidity of all or part this Agreement, the Indemnification Agreement, the Purchase Agreement or the Pooling and Servicing Agreement, (2) seeking to prevent the issuance of the Certificates, (3) that could materially and adversely affect the Seller's obligations under this Agreement, the Purchase Agreement or the Pooling and Servicing Agreement or the Servicer's obligations under the Indemnification Agreement, the Purchase Agreement or the Pooling and Servicing Agreement, or (4) seeking to affect adversely the federal or state income tax attributes of the Class A Certificates. (xiii) The Servicer has full power and authority to sell and assign the property to be sold and assigned to the Seller pursuant to the Purchase Agreement and has duly authorized such sale and assignment to the Seller by all necessary corporate action. (xiv) The Seller has full power and authority to sell and assign the property to be sold and assigned to and deposited with the Trustee as part of the Trust and has duly authorized such sale and assignment to the Trustee by all necessary corporate action. (xv) The Receivables are "chattel paper" as defined in the Uniform Commercial Code, as in effect in the State of California. (xvi) The undersigned is familiar with the Servicer's standard operating procedures relating to the Servicer's acquisition of a perfected first priority security interest in the vehicles financed by the retail installment sale contracts purchased by the Servicer in the ordinary course of the Servicer's business and relating to the sale by the Servicer to NARC of such contracts and such security interests in the financed vehicles in the ordinary course of the Servicer's and NARC's business. Assuming that the Servicer's standard procedures are followed with respect to the perfection of security interests in the Financed Vehicles (and such counsel has no reason to believe that the Servicer has not ~~been so~~ or will not continue to follow its standard procedures in connection with the perfection of security interests in the Financed Vehicles), the Servicer has acquired or will acquire a perfected first priority security interest in the Financed Vehicles. (f) ▇▇▇▇, Gotshal & ▇▇▇▇▇▇ LLP, special counsel to the Seller, shall have furnished to the Representatives their written opinion, dated as of the Closing Date, in substantially the form set foforth below, with such changes therein as counsel for the Underwriters shall reasonably agree: (i) Each of the Pooling and Servicing Agreement and the Purchase Agreement constitutes a valid and binding obligation of the Servicer, enforceable against the Servicer in accordance with its terms. (ii) Each of the Pooling and Servicing Agreement and the Purchase Agreement constitutes a valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms.

Appears in 1 contract

Sources: Underwriting Agreement (Nissan Auto Receivables Corp /De)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company ~~herein set forth as of the date hereof and as of each Closing Date~~herein, to the accuracy of the statements in any certificates of the ~~Company's officers made~~ Company delivered pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The Representatives shall have received a letter, dated the date of delivery thereof (which, if the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement, shall be on or prior to the date of this Agreement or, if the Effective Time of the Initial Registration Statement is subsequent to the execution and delivery of this Agreement, shall be prior to the filing of the amendment or post-effective amendment to the registration statement to be filed shortly prior to such Effective Time), of PricewaterhouseCoopers LLP in the form set out as EXHIBIT A to this Agreement. (b) If the Effective Time of the Initial Registration Statement is not prior to the execution and delivery of this Agreement, such Effective Time shall have ~~been declared effective by the Commission~~ occurred not later than ~~5:30 p.m.~~10:00 P.M., ~~Washington, D.C.~~ New York time, on the date of this ~~Agreement,~~ Agreement or such later ~~time and~~ date as shall have been consented to by CSFBC. If the ~~Representatives, which consent shall be deemed to have been given if~~ Effective Time of the Additional Registration Statement (if any) is not prior to the execution and delivery of this Agreement, such Effective Time shall have occurred not later than 10:00 P.M., New York time, on the date of this Agreement or, if earlier, the time the Prospectus is printed and distributed to any Underwriter, or shall have occurred at such later date as shall have been ~~declared effective on or before~~ consented to by CSFBC. If the ~~date and time requested in the acceleration request submitted on behalf~~ Effective Time of the ~~Representatives pursuant~~ Initial Registration Statement is prior to ~~Rule 461 under~~ the ~~Act; all filings required by Rules 424(b)~~ execution and ~~430A under~~ delivery of this Agreement, the ~~Act~~ Prospectus shall have been ~~timely made;~~ filed with the Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement. Prior to such Closing Date, no stop order suspending the effectiveness of ~~the~~ a Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Company or the Representatives, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) any change, or any development or event involving a prospective change, in the condition (~~ii) above~~financial or other), business, properties, results of operations or prospects of the Company and its subsidiaries taken as one enterprise which, in the judgment of a majority in interest of the Underwriters including the Representatives, is ~~in the reasonable and good faith opinion of the Representatives so~~ material and adverse ~~as to make~~ and makes it ~~impracticable~~ impractical or inadvisable to proceed with completion of the public offering or the ~~delivery~~ sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities or preferred stock of the ~~Shares on~~ Company by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the ~~terms and~~ Act) or downgrading in the ~~manner contemplated~~ insurance claims paying ability rating of any Insurance Subsidiary by A.M. Best Company, or any public announcement that any such organization has under surveillance or review its rating of any such rating (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any change in ~~the Registration Statement and the Prospectus. (c) The Representatives shall not have advised the Company that the Registration Statement~~ U.S. or ~~Prospectus contains an untrue statement of fact that~~international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the ~~reasonable and good faith opinion~~ judgment of a majority in interest of the ~~Representatives~~ Underwriters including the Representatives, be likely to prejudice materially the success of the proposed issue, sale or ~~counsel~~ distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange or the Nasdaq Stock Market's National Market, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the ~~Underwriters~~Company on any exchange or in the over-the-counter market; (v) any banking moratorium declared by U.S. Federal or New York authorities; (vi) any major disruption of settlements of securities or clearance services in the United States or (vii) any attack on, ~~is material~~ outbreak or ~~omits to state a fact that~~escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the ~~reasonable and good faith opinion~~ judgment of a majority in interest of the ~~Representatives~~ Underwriters including the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or ~~such counsel, is material~~ emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and ~~is required to be stated therein or necessary to make~~ payment for the ~~statements therein not misleading~~Offered Securities. (d) The Representatives shall have received ~~opinions of Foley & Lardner~~an opinion, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated ~~the First Closing Date or the Second~~ such Closing Date, as of LeBoeuf, Lamb, ▇▇▇▇▇▇ and ▇▇▇▇▇▇, L.L.P., counsel for the ~~case may be~~Company, to the effect that: (i) The Company has been duly incorporated and is ~~validly~~ an existing ~~as a~~ corporation in good standing under the laws of the State of Delaware, with ~~full~~ the requisite corporate power ~~and authority~~ to ~~own, lease and operate~~ own its properties and conduct its business as ~~presently conducted and as~~ described in the ~~Prospectus~~ Prospectus; and the ~~Registration Statement~~Company is duly qualified to do business as a foreign corporation in good standing in the Commonwealth of Massachusetts; (ii) ~~The authorized~~ Each subsidiary of the Company is an existing corporation in good standing under the laws of the jurisdiction of its incorporation, with the requisite corporate power to own its properties and conduct its business as described in the Prospectus; the Company or one of its direct or indirect subsidiaries is the registered holder of all of the capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per shareeach subsidiary; (iii) The ~~issued~~ Offered Securities delivered on such Closing Date and all other outstanding ~~shares of capital stock~~ Securities of the Company ~~immediately prior to the sale of the Shares hereunder~~ have been duly authorized and validly issued, are (except for those Securities of the Company owned by the Company's "Management Team" (as that term is used in the Prospectus)) fully paid and nonassessable ~~(except,~~ and conform to the ~~extent applicable~~description thereof contained in the Prospectus; and, except as ~~otherwise~~ provided in Section ~~180.0622(2)(b)~~ 5.5 of the ~~Wisconsin Business Corporation Law~~Stockholders Agreement, ~~as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in~~ the ~~Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock~~ stockholders of the Company have ~~been issued in violation~~ no preemptive rights with respect to the Securities under Delaware law, under the Company's charter or by-laws or under any agreement to which the Company or any of ~~such rights~~its subsidiaries is a party that is filed as an exhibit to the Registration Statement; (iv) ~~The Significant Subsidiary is validly existing as~~ There are no contracts, agreements or understandings known to such counsel between the Company and any person granting such person the right to require the Company to file a ~~corporation in good standing or active status~~ registration statement under the ~~laws~~ Act with respect to any securities of ~~Tennessee, with full corporate power and authority~~ the Company owned or to ~~own, lease and operate its properties and~~ be owned by such person or to ~~conduct its business as presently conducted and as described~~ require the Company to include such securities in the ~~Prospectus and~~ securities registered pursuant to the Registration ~~Statement;~~ Statement or in any securities being registered pursuant to ~~such counsel's knowledge,~~ any other registration statement filed by the Company ~~owns directly or indirectly and beneficially all~~ under the Act, except for the registration rights contained in Article VI of the ~~issued and outstanding capital stock of the Significant Subsidiary~~Stockholders Agreement; (v) ~~The certificates~~ No consent, approval, authorization or order of, or filing with, any governmental agency or body or any court of the Commonwealth of Massachusetts, the State of Delaware or the federal government of the United States is required for the ~~Shares to be delivered hereunder conform in all material respects to the requirements~~ consummation of the ~~Delaware General Corporation Law and~~ transactions contemplated by this Agreement in connection with the ~~rules and regulations~~ issuance or sale of the ~~New York Stock Exchange; and when duly countersigned~~ Offered Securities by the Company~~'s transfer agent~~, except such as have been obtained and ~~delivered~~ made under the Act and the Exchange Act and such as may be required under state securities and insurance securities laws (as to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpretedwhich such counsel expresses no opinion); (vi) The execution, delivery and performance of this Agreement and the issuance and sale of the Offered Securities will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (i) any statute, rule, regulation or order of any governmental agency or body of the Commonwealth of Massachusetts, the State of Delaware or the federal government of the United States or any court of the Commonwealth of Massachusetts, the State of Delaware or the federal government of the United States having jurisdiction over the Company or any subsidiary of the Company or any of their properties (except such as may be required under state securities or state insurance securities laws, as to which such counsel need express no opinion), or (ii) any agreement or instrument filed as an exhibit to the Registration Statement to which the Company or any such subsidiary is a party or by which the Company or any such subsidiary is bound or to which any of the properties of the Company or any such subsidiary is subject, or (iii) the charter or by-laws of the Company or any such subsidiary except, in the case of clause (ii), as would not have a Material Adverse Effect, and the Company has ~~become~~ the requisite corporate power to authorize, issue and sell the Offered Securities as contemplated by this Agreement; (vii) Each Registration Statement and the Prospectus and each amendment or supplement thereto comply (except for financial statements and schedules and other financial data included therein as to which such counsel need not express any opinion) as to form in all material respects with the requirements of the Act and Rules and Regulations; such counsel has been advised by the Commission that the Registration Statement was declared effective under the Act as of the date and time specified in such opinion, the Prospectus either was filed with the Commission pursuant to the sub-paragraph of Rule 424(b) specified in such opinion on the date specified therein or was included in a Registration Statement and, to the knowledge of such counsel~~'s knowledge~~, no stop order suspending the effectiveness of ~~the~~ a Registration Statement or any part thereof has been issued and no proceedings for that purpose have been instituted or are ~~threatened~~ pending or contemplated by the Commission; ; (viii) The statements set forth in the Registration ~~Statement~~ Statements and Prospectus under the ~~Prospectus~~ captions "Business--Regulation", "Common Stock Eligible for Future Sale" and ~~any amendment or supplement thereto~~"Description of Capital Stock", ~~including any document incorporated by reference into the Registration Statement (except for the financial statements~~ insofar as they purport to describe statutes, legal and ~~schedules~~ governmental proceedings and contracts and other ~~statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form~~ documents are accurate in all material respects ~~with~~ and fairly present the ~~requirements of the Act~~information required to be shown; the ~~conditions for use of Form S-3,~~ statements set forth in the ~~General Instructions thereto~~Registration Statements and Prospectus under the caption "The Acquisition", ~~have been satisfied; (vii) To~~ insofar as they purport to summarize contracts and other documents, fairly summarize the terms of such ~~counsel's knowledge, there are no pending or threatened~~ contracts and other documents; and such counsel do not know of any legal or governmental proceedings ~~that are~~ required to be described in ~~the~~ a Registration Statement or the Prospectus ~~that~~ which are not ~~so described, nor, to such counsel's knowledge, is there~~ described as required or of any ~~transaction, relationship, agreement, contract~~ contracts or ~~other document~~ documents of a character required to be ~~described in the~~ filed as exhibits to a Registration Statement ~~or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be~~ which are not filed as ~~an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference~~ required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings;. (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this This Agreement has been duly authorized, executed and delivered by ~~and on behalf of~~ the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Prospectus, will not be an "investment company," as ~~such term is~~ defined in the Investment Company Act of 1940; and (xi) To the knowledge of such counsel, each Insurance Subsidiary holds such Insurance Licenses as ~~amended~~are necessary to the conduct of its business as described in the Prospectus; to the knowledge of such counsel, there is no pending or threatened action, suit, proceeding or investigation that would reasonably be expected to result in the revocation, termination or suspension of such Insurance Licenses which would reasonably be expected to have a Material Adverse Effect; and except as disclosed in the Prospectus, to the knowledge of such counsel, no insurance regulatory agency or body has issued, or commenced any proceeding for the issuance of, any order or decree impairing, restricting or prohibiting the payment of dividends by any Insurance Subsidiary to its parent. Such counsel ~~shall~~ may also state that (except as provided in (viii) above) they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewednot made any independent verification or check, and ~~that, although such counsel is not verifying, is~~ are not passing upon and ~~does~~ do not assume any responsibility for the accuracy, completeness or fairness of the statements contained ~~or incorporated by reference into~~ in the Registration Statement and Prospectus, but such counsel shall state that they have participated in reviews and discussions in connection with the preparation of the Registration Statement and Prospectus prior to the Closing Date, and in the course of such reviews and discussions no facts came to their attention that have caused them to believe that (x) the Registration Statement or any amendment thereto and the ~~Prospectus, on~~ prospectus included therein at the ~~basis of the information that was developed in the course of the performance of such services, they have no reason to believe that~~ time the Registration Statement ~~including~~ became effective (in each case, apart from the financial statements and schedules and other financial data contained therein or omitted therefrom as to which such counsel need not express any ~~document incorporated by reference therein, on its effective date,~~ opinion) contained any untrue statement of a material fact or omitted ~~or omits~~ to state any material fact required to be stated therein or necessary to make the statements therein not ~~misleading,~~ misleading or ~~that~~ (y) the ~~Prospectus,~~ Prospectus or any amendment or supplement thereto ~~including any document incorporated by reference therein,~~ as of its issue date ~~and~~ or as of such Closing Date (apart from the ~~Closing Date,~~ financial statements and schedules and other financial data contained therein or omitted therefrom as to which such counsel need not express any opinion) contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Datemisleading. (e) The Representatives shall have received ~~an opinion of Michael Best & Friedrich LLP, ▇▇~~from ▇▇▇▇▇ ~~▇▇▇ the~~ ▇▇▇▇▇▇▇▇~~ters~~▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated ~~the First Closing Date or the Second~~ such Closing Date~~, as the case may be~~, with respect to the ~~sale~~ incorporation of the ~~Shares hereunder~~Company, the validity of the Offered Securities delivered on such Closing Date, the Registration ~~Statement~~ Statements, the Prospectus and other related matters as the Representatives may ~~reasonably~~ require, and the Company shall have furnished to such counsel such documents ~~and shall have exhibited to them such papers and records~~ as ~~such counsel reasonably~~ they request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received ~~on each~~ a certificate, dated such Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the ~~Company,~~ Company executed by the President or any Vice President and a principal financial or accounting officer of the Company in ~~their respective capacities as such~~which such officers, to the ~~effect~~ best of such officers' knowledge after reasonable investigation, shall state that~~: (i) The~~ : the representations and warranties of the Company ~~set forth~~ in ~~Section 2 hereof~~ this Agreement are true and correct as of the ~~date of this Agreement and as of the date of such certificate, and~~ Closing Date; the Company has complied ~~in all material respects~~ with all ~~the~~ agreements and satisfied all ~~the~~ conditions on its part to be performed or satisfied ~~by it~~ hereunder at or prior to ~~the date of~~ such ~~certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto~~Closing Date; no stop order suspending the effectiveness of ~~the~~ any Registration Statement has been ~~issued;~~ issued and ~~to the knowledge of the respective signatories,~~ no proceedings for that purpose have been ~~initiated~~ instituted or are ~~pending~~ contemplated by the Commission; if any Additional Registration Statement was filed, the Additional Registration Statement satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule 462(b), including payment of the applicable filing fee in accordance with Rule 111(a) or (b) under the ~~Act or under~~ Act, prior to the ~~Blue Sky Laws of~~ time the Prospectus was printed and distributed to any ~~jurisdiction; (iii) Each~~ Underwriter; and, subsequent to the date of the ~~respective signatories has examined the Registration Statement and~~ most recent financial statements in the Prospectus, ~~and~~ there has been no material adverse change, nor any ~~amendment~~ development or ~~supplement thereto~~event involving a prospective material adverse change, ~~including any documents filed under the Exchange Act and deemed to be incorporated by reference~~ in the ~~Registration Statement~~condition (financial or other), business, properties, results of operations or prospects of the Company and ~~such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of~~ its subsidiaries taken as a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be whole except as set forth in ~~an amended~~ or ~~supplemented prospectus~~ contemplated by the Prospectus or as described in ~~an amendment~~ such certificate. (g) The Representatives shall have received a letter, dated such Closing Date, from PricewaterhouseCoopers LLP bringing down the letter from PricewaterhouseCoopers LLP provided to the ~~Registration Statement that has~~ Representatives pursuant to Section 6(a) to a date not ~~been so set fo~~more th

Appears in 1 contract

Sources: Underwriting Agreement (Safety Insurance Group Inc)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Securities on the Closing Date will be subject to the accuracy when made and on the Closing Date of the representations and warranties on the part of the Company ~~herein set forth as of the date hereof~~ herein; provided that with respect to Section 2(b), such representation and ~~as of each Closing Date~~warranty shall be with respect to all Securities, to the accuracy of the statements of the ~~Company's~~ Company officers made pursuant to the provisions hereof, to the performance by the Company in all material respects ~~by the Company~~ of its respective obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Representatives shall have ~~been declared effective by the Commission not later than 5:30 p.m., Washington, D.C. time~~received, on the date hereof and on the Closing Date, a letter dated such date, in form and substance satisfactory to you, from each of ~~this Agreement~~Deloitte & Touche LLP, an independent registered public accounting firm with respect to the Company and Ernst & Young LLP, an independent registered public accounting firm with respect to the Company, containing the information and statements of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or ~~such later time~~ incorporated by reference into the Registration Statement, the Prospectus and ~~date as~~ the Time of Sale Information. (b) The Prospectus shall have been ~~consented to by~~ filed with the ~~Representatives, which consent shall be deemed to have been given if~~ Commission in accordance with the ~~Registration Statement shall have been declared effective on or before the date~~ Rules and ~~time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b~~Regulations and Section 5(a) ~~and 430A under the Act shall have been timely made; no~~ hereof. No stop order suspending the effectiveness of the Registration Statement shall have been issued by and no proceedings for that purpose or pursuant to Section 8A under the ~~Commission or any state securities commission nor~~Act shall have been instituted or, to the knowledge of the ~~Company~~Company or any Underwriter, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) any change, or any development or event involving a prospective change, in the condition (~~ii) above~~financial or other), is business, properties or results of operations of the Company and its subsidiaries taken as one enterprise that, in the reasonable ~~and good faith opinion~~ judgment of the ~~Representatives so~~ Representatives, is material and adverse ~~as to make~~ and makes it ~~impracticable~~ impractical or inadvisable to proceed with completion of the public offering or the ~~delivery~~ sale of and payment for the Securities; (ii) any downgrading in the rating of any debt securities of the ~~Shares on~~ Company or Hovnanian by any “nationally recognized statistical rating organization” (as defined under Section 3(a)(62) of the ~~terms and in the manner contemplated in the Registration Statement and the Prospectus. (c) The Representatives shall not have advised~~ 1934 Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of Hovnanian or the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating) or any announcement that the ~~Registration Statement~~ Company or ~~Prospectus contains an untrue statement of fact that~~Hovnanian has been placed on negative outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the reasonable ~~and good faith opinion~~ judgment of the ~~Representatives~~ Representatives, be likely to prejudice materially the success of the proposed issue, sale or ~~counsel~~ distribution of the Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of Hovnanian or the ~~Underwriters, is material~~ Company on any exchange or ~~omits to state a fact that~~in the over-the-counter market; (v) any banking moratorium declared by U.S. Federal or New York authorities; (vi) any major disruption of settlements of securities or clearance services in the United States if, in the reasonable ~~and good faith opinion~~ judgment of the ~~Representatives~~ Representatives, the effect of such disruption makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Securities; or (vii) any attack on, outbreak or escalation of hostilities or act of terrorism involving, the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the reasonable judgment of the Representatives, the effect of any such ~~counsel~~attack, ~~is material~~ outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and ~~is required to be stated therein or necessary to make~~ payment for the ~~statements therein not misleading~~Securities. (d) The Representatives shall have received ~~opinions~~ an opinion of ~~Foley & Lardner~~▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ~~special couns~~Esq., Senior Vice President and General Counsel of the Company, dated the Closing Date, substantially to the effect as set forth in Exhibit A. (e) The Representatives shall have received an opinion and a negative assurance statement, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇▇r ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the ~~Company (as~~ Company, substantially to the ~~matters~~ effect as set forth ~~below~~ in ~~subsections~~ Exhibits B-1 and B-2, respectively. (i)f) The Representatives shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, an opinion, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters. (~~ii)~~g) The Representatives shall have received a certificate, ~~(vi)~~dated the Closing Date and signed by J. ▇▇▇▇▇ ▇▇▇▇▇▇, ~~(viii), (ix)~~ in his capacity as Executive Vice President and ~~(xiv)), and the Vice President, General Counsel and Secretary~~ Chief Financial Officer of the Company (~~as to~~ i) confirming the matters set forth in ~~subsections (iii~~Sections 2(v), 2(w) and 2(x), (~~iv), (v), (vii), (x), (xi), (xii~~ii) confirming that all the representations and ~~(xiii) addressed to the Representatives, as the representatives~~ warranties of the ~~Underwriters,~~ Company and ~~dated~~ its subsidiaries herein contained are true and correct on the ~~First~~ Closing Date or with the ~~Second~~ same force and effect as if made on and as of the Closing Date, as the case may be, to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) ~~The issued and outstanding shares of capital stock~~ that, in all material respects, the Company has complied with all of the agreements and satisfied all of the conditions herein contained and required to be complied with or satisfied by the Company ~~immediately~~ on or prior to the ~~sale of the Shares hereunder have been duly authorized and validly issued~~Closing Date, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) ~~The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority~~ to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's his knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or pursuant to Section 8A under the Act have been instituted or are ~~threatened~~ contemplated by the ~~Commission;~~ Commission and (v) since the ~~Registration Statement and~~ date of the ~~Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the~~ most recent financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the ~~Registration Statement by~~ Time of Sale Information and the ~~Act~~Prospectus (exclusive of any supplement thereto), ~~which is not described~~there has been no material adverse effect on the business, ~~filed~~ prospects, financial condition or ~~incorporated by reference required; (viii) Statements~~ results of operations of the Company and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Time of Sale Information and the Prospectus ~~under the heading "Description~~ (exclusive of ~~Capital Stock,"~~ any supplement thereto). (h) The Representatives shall have received lockup letters in the ~~description~~ form of Exhibit D hereto from each of the ~~Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994,~~ executive officers and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance directors of the Company~~'s obligations hereunder and the consummation of the transactions described herein~~ . (i) The Securities shall have been ~~duly authorized by the Company by all necessary corporate action~~ listed and ~~this Agreement has been duly executed~~ admitted and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange~~; (xiii) To~~ , and satisfactory evidence of such ~~counsel's knowledge, neither~~ actions shall have been provided to the ~~Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv)~~ Representatives. The Company ~~is not an "investment company,"~~ will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as ~~such term is defined~~ the Representatives reasonably request. The Representatives may in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives their sole discretion waive on behalf of the Underwriters ~~and their counsel during which~~ compliance with any conditions to the ~~content~~ obligations of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters ~~on or before each Closing Date~~hereunder. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set fo

Appears in 1 contract

Sources: Underwriting Agreement (Hovnanian Enterprises Inc)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of the date hereof and as of each Closing Date~~Corporation herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Corporation made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Corporation of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Prospectus shall have been ~~declared effective~~ filed by the Corporation with the Commission ~~not later than 5:30 p.m., Washington, D.C. time, on~~ pursuant to Rule 424(b) within the ~~date of this Agreement, or such later~~ applicable time period prescribed for filing by the 1933 Act Regulations and ~~date as~~ in accordance herewith and the Permitted Free Writing Prospectus shall have been ~~consented to~~ filed by the ~~Representatives~~Corporation with the Commission within the applicable time periods prescribed for such filings by, ~~which consent shall be deemed~~ and otherwise in compliance with, Rule 433. (b) At or after the Applicable Time and prior to ~~have been given if~~ the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued by and no proceedings for that purpose or pursuant to Section 8A of the ~~Commission or any state securities commission nor~~1933 Act shall have been instituted or, to the knowledge of the ~~Company~~Corporation or you, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be threatened by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) ~~Subsequent~~ At or after the Applicable Time and prior to the ~~execution~~ Closing Date, the rating assigned by M▇▇▇▇’▇ Investors Service, Inc. or S&P Global Ratings (or any of their successors) to any debt securities or preferred stock of the Corporation as of the date of this ~~Agreement,~~Agreement shall not have been lowered. (id) Since the respective most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus and up to the Closing Date, there shall not have ~~occurred~~ been any material adverse change in the condition of the Corporation, financial or ~~development involving~~otherwise, except as reflected in or ~~which could be reasonably expected~~ contemplated by the Pricing Disclosure Package and the Prospectus, and, since such dates and up to ~~involve~~the Closing Date, ~~a Material Adverse Effect, whether or~~ there shall not ~~arising from~~ have been any material transaction entered into by the Corporation other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which ~~on the Company,~~ in ~~any such case described in clause (i) or (ii) above,~~ your reasonable judgment is ~~in the reasonable and good faith opinion of the Representatives~~ so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Shares~~ Notes on the terms and in the manner contemplated in by the ~~Registration Statement~~ Pricing Disclosure Package and the Prospectus. (ce) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives You shall have received ~~opinions~~ an opinion of ~~Foley & Lardner, special couns~~R▇▇▇▇▇ ▇. ▇~~r the Company~~ ▇▇▇▇ III, Esq., Deputy General Counsel of Duke Energy Business Services LLC (as who in such capacity provides legal services to the ~~matters set forth below in subsections (i~~Corporation), the service company subsidiary of the Corporation, or other appropriate counsel reasonably satisfactory to the Representatives (iiwhich may include the Corporation’s other “in-house” counsel), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the ~~First Closing Date or the Second~~ Closing Date~~, as the case may be~~, to the effect that: (i) ~~The Company~~ Each of Duke Energy Ohio, Inc., Progress Energy, Inc. and Piedmont Natural Gas Company, Inc., has been duly incorporated and is validly existing ~~as a corporation~~ in good standing under the laws of ~~Delaware, with full~~ the jurisdiction of its incorporation and has the respective corporate power and authority and foreign qualifications necessary to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate own its properties and to conduct its business as ~~presently conducted~~ described in the Pricing Disclosure Package and the Prospectus. Each of Duke Energy Carolinas, LLC, Duke Energy Florida, LLC, Duke Energy Indiana, LLC and Duke Energy Progress, LLC has been duly organized and is validly existing and in good standing as a limited liability company under the laws of the State of North Carolina, the State of Florida, the State of Indiana and the State of North Carolina, respectively, and has full limited liability company power and authority necessary to own its properties and to conduct its business as described in the ~~Prospectus~~ Pricing Disclosure Package and the ~~Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all~~ Prospectus. (ii) Each of the ~~issued~~ Corporation and ~~outstanding capital stock~~ the Principal Subsidiaries is duly qualified to do business in each jurisdiction in which the ownership or leasing of its property or the conduct of its business requires such qualification, except where the failure to so qualify, considering all such cases in the aggregate, does not have a material adverse effect on the business, properties, financial condition or results of operations of the ~~Significant Subsidiary;~~Corporation and its subsidiaries taken as a whole. (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (viiii) The Registration Statement ~~has become~~ became effective ~~under~~ upon filing with the Commission pursuant to Rule 462 of the 1933 Act Regulations, and, to the best of such counsel's ’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened by under the ~~Commission;~~ 1933 Act. (iv) The descriptions in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package and the Prospectus ~~and~~ of any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings ~~that~~ are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, accurate and ~~in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein,~~ fairly present the information ~~called for with respect~~ required to be shown, and such counsel does not know of any litigation or any legal ~~matters~~or governmental proceeding instituted or threatened against the Corporation or any of its Principal Subsidiaries or any of their respective properties that would be required to be disclosed in the Registration Statement, ~~documents~~ the Pricing Disclosure Package or the Prospectus and ~~proceedings;~~is not so disclosed. (ixv) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this This Agreement has been duly authorized, executed and delivered by ~~and on behalf of~~ the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD);Corporation. (xvi) The execution, delivery and performance by the Corporation of this Agreement by and the ~~Company will not: (A) violate any provisions~~ Indenture and the issue and sale of the ~~Articles of Incorporation~~ Notes will not violate or ~~Bylaws of the Company or the Significant Subsidiary; (B) violate~~ contravene any of the provisions ofof the Certificate of Incorporation or By-Laws of the Corporation or any statute or any order, rule or regulation of which such counsel is aware of any court or governmental agency or body having jurisdiction over the Corporation or any of its Principal Subsidiaries or any of their respective property, nor will such action conflict with or result in a breach or violation of any of the ~~breach, modification~~ terms or ~~termination~~ provisions of, or constitute a default ~~under,~~ under any ~~agreement, lease, franchise, license,~~ indenture~~, permit~~, mortgage, deed of trust, ~~other evidence of indebtedness~~ loan agreement or other agreement or instrument known to such counsel to which the ~~Company~~ Corporation or ~~the Significant Subsidiary~~ any of its Principal Subsidiaries is a party or by which any of them or their respective property is bound or to which any of its property or assets is subject, which affects in a material way the ~~Company~~ Corporation’s ability to perform its obligations under this Agreement, the Indenture and the Notes. (vii) The Indenture has been duly authorized, executed and delivered by the Corporation and, assuming the due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument of the Corporation, enforceable against the Corporation in accordance with its terms. (viii) The Notes have been duly authorized, executed and issued by the Corporation and, when authenticated by the Trustee, in the manner provided in the Indenture and delivered against payment therefor, will constitute valid and legally binding obligations of the Corporation enforceable against the Corporation in accordance with their terms, and are entitled to the benefits afforded by the Indenture in accordance with the terms of the Indenture and the Notes. (ix) No consent, approval, authorization, order, registration or ~~the Significant Subsidiary~~qualification is required to authorize, or ~~any~~ for the Corporation to consummate the transactions contemplated by this Agreement, except for such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of ~~their respective owned or leased property is bound~~the Notes by the Underwriters and except as required in Condition No. 7.6 of the order of the North Carolina Utilities Commission dated September 29, 2016, in Docket Nos. E-7, Sub 1100, E-2, Sub 1095, and G-9, Sub 682, which consent has been obtained. Such counsel may state that his opinions in paragraphs (vii) and (viii) are subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is ~~filed~~ considered in a proceeding in equity or at law). Such counsel shall state that nothing has come to his attention that has caused him to believe that each document incorporated by reference ~~as an exhibit to~~ in the Registration Statement~~; or (C) violate any statute~~, ~~ordinance~~the Pricing Disclosure Package and the Prospectus, ~~order~~when filed, ~~rule~~was not, ~~decree or regulation of any court~~on its face, ~~regulatory or governmental body~~appropriately responsive, ~~arbitrator~~in all material respects, ~~administrative agency or other instrumentality~~ to the requirements of the ~~United States having jurisdiction over~~ 1934 Act and the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the 1934 Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amendedRegulations. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information nothing has come to his attention that ~~was developed in the course of the performance of such services, they have no reason~~ has caused him to believe that (i) the Registration ~~Statement~~ Statement, including ~~any document incorporated by reference therein~~the Rule 430B Information, on as of its effective ~~date~~date and at each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations, contained any untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package at the Applicable Time contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) that the Prospectus, ~~or any amendment or supplement thereto including any document incorporated by reference therein,~~ as of its ~~issue~~ date ~~and as of~~ or at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading (~~misleading. Such counsel may also state that, except as otherwise expressly provided ~~that~~ in such ~~counsel need express no belief regarding~~ opinion, he does not assume any responsibility for the ~~financial~~ accuracy, completeness or fairness of the statements ~~and related schedules and other financial or statistical data~~ contained in or incorporated by reference into the Registration Statement, the Pricing Disclosure Package or the Prospectus and does not express any ~~amendment thereto including any document~~ opinion or belief as to (i) the financial statements or other financial and accounting data contained or incorporated by reference ~~therein~~therein or excluded therefrom, or including XBRL interactive data, (ii) the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention statement of the ~~attorneys~~ eligibility and qualification of the Trustee included in ~~such firm who have been involved in the preparation or review of~~ the Registration Statement (the “Form T-1”) or (iii) the information in the Prospectus under the caption “Book-Entry System.” In rendering the foregoing opinion, such counsel may state that ~~would give them actual current knowledge~~ he does not express any opinion concerning any law other than the law of the ~~existence or absence~~ State of ~~such matter in question. In rendering such opinion, counsel for the Company may rely~~North Carolina or, to the extent ~~counsel deems such reliance proper~~set forth in the foregoing opinions, the federal securities laws and may rely as to all matters of ~~fact upon certificates~~ the laws of the States of South Carolina, Ohio, Indiana and Florida on appropriate counsel reasonably satisfactory to the Representatives, which may include the Corporation’s other “in-house” counsel). Such counsel may also state that he has relied as to certain factual matters on information obtained from public officials, officers of the ~~Company~~ Corporation and ~~any governmental officials, and copies of all such certificates shall~~ other sources believed by him to be ~~furnished to the Representatives and for the Underwriters on or before each Closing Date~~reliable. (ef) ~~The Representatives~~ You shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇Hunton A▇▇▇▇▇▇ ▇▇▇▇~~sel and Secretary~~▇ LLP, of counsel to the ~~Company~~Corporation, ~~in their respective capacities as such~~dated the Closing Date, to the effect that: (i) The ~~representations~~ Corporation has been duly incorporated and ~~warranties~~ is a validly existing corporation in good standing under the laws of the ~~Company set forth in Section 2 hereof are true and correct as~~ State of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate;Delaware. (ii) The ~~Commission~~ Corporation has ~~not issued an order preventing or suspending~~ the ~~use of~~ corporate power and corporate authority to execute and deliver this Agreement and the ~~Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued;~~ Supplemental Indenture and to consummate the ~~knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction;~~transactions contemplated hereby. (iii) ~~Each~~ This Agreement has been duly authorized, executed and delivered by the Corporation. (iv) The Indenture has been duly authorized, executed and delivered by the Corporation and, assuming the due authorization, execution and delivery thereof by the Trustee, is a valid and binding agreement of the ~~respective signatories has examined~~ Corporation, enforceable against the ~~Registration Statement~~ Corporation in accordance with its terms. (v) The Notes have been duly authorized and executed by the Corporation, and, when duly authenticated by the Trustee and issued and delivered by the Corporation against payment therefor in accordance with the terms of this Agreement and the Indenture, the Notes will constitute valid and binding obligations of the Corporation, entitled to the benefits of the Indenture and enforceable against the Corporation in accordance with their terms. (vi) The statements set forth (i) under the caption “Description of Debt Securities” (other than under the caption “Global Securities”) that are included in the Base Prospectus and (ii) under the caption “Description of the Notes” in the Pricing Disclosure Package and the Prospectus, insofar as such statements purport to summarize certain provisions of the Indenture and ~~any amendment or supplement thereto~~the Notes, ~~including any documents filed~~ fairly summarize such provisions in all material respects. (vii) The statements set forth under the ~~Exchange Act and deemed to be incorporated by reference~~ caption “Certain U.S. Federal Income Tax Considerations for Non-U.S. Holders,” in the ~~Registration Statement~~Pricing Disclosure Package and the Prospectus, insofar as such statements purport to constitute summaries of matters of United States federal income tax law, constitute accurate and complete summaries, in all material respects, subject to the qualifications set forth therein. (viii) No Governmental Approval, which has not been obtained or taken and is not in full force and effect, is required to authorize, or is required for, the execution or delivery of this Agreement by the Corporation or the consummation by the Corporation of the transactions contemplated hereby, except for such ~~documents contain all statements~~ consents, approvals, authorizations, orders, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of ~~material fact~~ the Notes by the Underwriters. “Governmental Approval” means any consent, approval, license, authorization or validation of, or filing, qualification or registration with, any Governmental Authority required to be ~~stated therein~~made or obtained by the Corporation pursuant to Applicable Laws, other than any consent, approval, license, authorization, validation, filing, qualification or registration that may have become applicable as a result of the involvement of any party (other than the Corporation) in the transactions contemplated by this Agreement or because of such parties’ legal or regulatory status or because of any other facts specifically pertaining to such parties and ~~do not include~~ “Governmental Authority” means any ~~untrue statement~~ court, regulatory body, administrative agency or governmental body of ~~a material fact~~ the State of North Carolina, the State of New York or ~~omit to state any material fact required to be stated therein~~ the State of Delaware or ~~necessary to make~~ the ~~statements therein not misleading~~United States of America having jurisdiction over the Corporation under Applicable Law but excluding the North Carolina Utilities Commission, the New York Public Service Commission and ~~since~~ the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set foDelaware Public Service Commission.

Appears in 1 contract

Sources: Underwriting Agreement (Duke Energy CORP)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of KBNA and the ~~Company herein set forth as of the date hereof and as of each Closing Date~~Depositor herein, to the accuracy of the written statements of officers of KBNA and the ~~Company's officers~~ Depositor made pursuant to the provisions ~~hereof~~of this Section, to the performance ~~in all material respects~~ by KBNA and the ~~Company~~ Depositor of ~~its~~ their obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) ~~The Registration Statement~~ If the Effective Time is not prior to the execution and delivery of this Agreement, the Effective Time shall have ~~been declared effective by the Commission~~ occurred not later than ~~5:30~~ 6:00 p.m., ~~Washington, D.C.~~ New York City time, on the date of this ~~Agreement,~~ Agreement or such later time ~~and~~ or date as shall have been consented to by the ~~Representatives~~Representative. (b) If the Effective Time is prior to the execution and delivery of this Agreement, ~~which consent shall be deemed to have been given if~~ the ~~Registration Statement~~ Prospectus and any supplements thereto shall have been ~~declared effective on or before~~ filed with the ~~date~~ Commission in accordance with the Rules and ~~time requested in~~ Regulations and Section 5(a) hereof. Prior to the ~~acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made;~~ Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Seller or the Representative, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) The Representative shall have received a letter, dated on or prior to the Closing Date of Ernst & Young LLP on behalf of KBNA confirming that such accountants are independent public accountants within the meaning of the Act and the applicable published Rules and Regulations thereunder, and substantially in the form of the drafts to which the Representative has previously agreed and otherwise in form and substance reasonably satisfactory to the Representative and its counsel. (d) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred (i) any ~~change or development involving~~change, or ~~which could be reasonably expected to involve~~any development involving a prospective change, ~~a Material Adverse Effect~~in or affecting particularly the business or properties of the Trust, ~~whether~~ KBNA or ~~not arising from transactions~~ KeyCorp which, in the ~~ordinary course~~ judgment of ~~business~~the Representative, ~~and~~ materially impairs the investment quality of the Notes or makes it impractical or inadvisable to market the Notes; (ii) any downgrading in the ~~Company shall not have sustained~~ rating of any ~~loss~~ debt securities of KBNA or ~~interference from~~ KeyCorp by any ~~labor dispute~~“nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act), ~~strike~~or any public announcement that any such organization has under surveillance or review its rating of any debt securities of KBNA or KeyCorp (other than an announcement with positive implications of a possible upgrading, ~~fire~~and no implication of a possible downgrading, ~~flood~~of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, ~~windstorm~~or any setting of minimum prices for trading on such exchange; (iv) any suspension of trading of any securities of KBNA or KeyCorp on any exchange or in the over-the-counter market; (v) any banking moratorium declared by Federal or New York authorities; or (vi) any outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, ~~accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect,~~ if the effect of ~~which on the Company, in~~ any such ~~case described~~ event specified in this clause (ivi) ~~or (ii) above, is~~ in the ~~reasonable and good faith opinion~~ judgment of the ~~Representatives so material and adverse as to make~~ Representative makes it impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Shares~~ Notes on the terms and in the manner contemplated in the ~~Registration Statement and the~~ Prospectus. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives shall have received opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The ~~Representatives~~ Representative shall have received an opinion of ~~Michael Best & Friedrich LLP~~▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., Deputy General Counsel and Senior Vice President of KBNA, as counsel for (i) KBNA, as the Seller, the Master Servicer and the Administrator and (ii) the Depositor, dated the Closing Date, in the form attached hereto as Exhibit A, or as is otherwise satisfactory in form and substance to the Representative and its counsel. (f) The Representative shall have received one or more opinions of ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP, counsel to the Depositor and the Seller, dated the Closing Date, in the form attached hereto as Exhibit B, or as is otherwise satisfactory in form and substance to the Representative and its counsel, regarding certain true sale, bankruptcy, insolvency and perfection of security interest matters regarding the Seller, the Depositor and the Trust. (g) [Reserved]. (h) The Representative shall have received an opinion of ▇▇▇▇▇▇▇▇~~ters~~▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, counsel to KBNA and the Depositor, dated the ~~First~~ Closing Date and satisfactory in form and substance to the Representative and its counsel, to the effect that the statements in the Prospectus under the headings “Summary of Terms—Tax Status” and “Pennsylvania State Tax Consequences—Pennsylvania Income and Franchise Tax Consequences with Respect to the Notes” accurately describe the material Pennsylvania tax consequences to holders of the Notes. (i) The Representative shall have received an opinion addressed to the several Underwriters of ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP, in its capacity as Federal tax and ERISA counsel for the Trust, to the effect that the statements in the Prospectus under the headings “Summary of Terms—Tax Status” and “Federal Tax Consequences for Trusts in which all Certificates are Retained by the Seller, the Depositor or a Third Party Originator” accurately describe the ~~Second~~ material Federal income tax consequences to holders of the Notes, and the statements in the Prospectus under the headings “Summary of Terms—ERISA Considerations” and “ERISA Considerations” to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, have been prepared or reviewed by such counsel and accurately describe the material consequences to holders of the Notes under ERISA. ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP, in its capacity as special counsel to the Trust, shall have delivered an opinion with respect to the characterization of the transfer of the Initial Financed Student Loans. (j) The Representative shall have received an opinion addressed to the several Underwriters of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, in its capacity as special counsel to the several Underwriters, dated the Closing Date~~, as the case may be~~, with respect to the ~~sale~~ validity of the ~~Shares hereunder, the Registration Statement~~ Notes and such other related matters as the ~~Representatives may~~ Representative shall reasonably ~~require,~~ require and each of KBNA and the ~~Company~~ Depositor shall have furnished or caused to be furnished to such counsel such documents ~~and shall have exhibited to them such papers and records~~ as ~~such counsel~~ they may reasonably request for the purpose of enabling them to pass upon such matters. (fk) The ~~Representatives~~ Representative shall have received ~~on each Closing Date, a certificate~~ an opinion of ~~Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇~~the law offices of ▇▇▇▇ ▇▇▇▇~~sel and Secretary~~, of special student loan counsel to the ~~Company~~Representative and, in ~~their respective capacities as such~~the case of clause (iii) below, special student loan counsel to the Eligible Lender Trustee, dated the Closing Date, satisfactory in form and substance to the Representative, to the effect that: (i) ~~The representations~~ the agreements implementing the Programs, (including the Coordination Agreements) and ~~warranties of~~ the ~~Company set forth~~ Relevant Documents (as defined in ~~Section 2 hereof are true and correct as of the date of this Agreement and as of the date of~~ such ~~certificate~~opinion), and the ~~Company has complied~~ transactions contemplated by the Relevant Documents, conform in all material respects to the applicable requirements of the Higher Education Act, and that, upon the due authorization, execution and delivery of the Relevant Documents and the consummation of such transactions, the Financed Federal Loans, legal title to which will be held by the Eligible Lender Trustee on behalf of the Trust, will qualify, subject to compliance with all ~~the agreements~~ applicable origination and ~~satisfied~~ servicing requirements, for all ~~the conditions to be performed or satisfied by it at or prior to the date of such certificate~~applicable federal assistance payments, including federal reinsurance and federal interest subsidies and special allowance payments; (ii) ~~The Commission~~ such counsel has ~~not issued an order preventing or suspending~~ examined the ~~use of~~ Prospectus, and nothing has come to such counsel’s attention that would lead such counsel to believe that, solely with respect to the ~~Prospectus or any Preliminary~~ Higher Education Act and the student loan business, the Prospectus or any amendment or supplement ~~thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge~~ thereto as of the respective ~~signatories~~dates thereof or on the Closing Date contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein not misleading; and (iii) the Eligible Lender Trustee is an “eligible lender” as such term is defined in Section 435(d) of the Higher Education Act for purposes of holding legal title to the Financed Federal Loans. (l) The Representative shall have received an opinion of counsel to PHEAA, ~~no proceedings for that purpose have~~ in its capacity as Sub-Servicer and as Guarantor, dated the Closing Date and satisfactory in form and substance to the Representative and its counsel, to the effect that: (i) PHEAA has been ~~initiated or are pending~~ duly organized and is validly existing as an agency of the Commonwealth of Pennsylvania in good standing under the ~~Act or~~ laws thereof with full power and authority (corporate and other) to own its properties and conduct its business, as presently conducted by it, and to enter into and perform its obligations under the ~~Blue Sky Laws~~ PHEAA Sub-Servicing Agreements and the Guarantee Agreement (and the agreements with the Department under Section 428 of the Higher Education Act to the extent relevant to PHEAA’s obligations under such Guarantee Agreement) to which it is a party, and had at all relevant times, and now has, the power, authority and legal right to service the Financed Student Loans it is servicing, to guarantee the Financed Federal Loans covered by such Guarantee Agreement and to receive, subject to compliance with all applicable conditions, restrictions and limitations of the Higher Education Act, reinsurance payments from the Department with respect to claims paid by it on such Financed Federal Loans. (ii) PHEAA is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals in each jurisdiction in which failure to qualify or to obtain such license or approval would render any ~~jurisdiction;~~Financed Student Loan or PHEAA’s obligation under its Guarantee Agreement unenforceable by or on behalf of the Trust. (iii) Each of the ~~respective signatories has examined the Registration Statement~~ PHEAA Sub-Servicing Agreements and the ~~Prospectus~~Guarantee Agreement (and the agreements with the Department under Section 428 of the Higher Education Act to the extent relevant to PHEAA’s obligations under such Guarantee Agreement) to which PHEAA is a party has been duly authorized, executed and delivered by PHEAA and is the legal, valid and binding obligation of PHEAA enforceable against PHEAA in accordance with its terms, notwithstanding the existence of any doctrine of sovereign immunity except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights, and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any ~~amendment~~ proceeding therefor may be brought. (iv) Neither the execution and delivery by PHEAA of the PHEAA Sub-Servicing Agreements or ~~supplement thereto~~the Guarantee Agreement to which it is a party, ~~including~~ nor the consummation by PHEAA of the transactions contemplated therein nor the fulfillment of the terms thereof by PHEAA will conflict with, result in a breach, violation or acceleration of, or constitute a default under, any ~~documents filed~~ term or provision of PHEAA's authorizing legislation or by-laws of PHEAA or of any indenture or other agreement or instrument to which PHEAA is a party or by which PHEAA is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to PHEAA of any court, regulatory body, administrative agency or governmental body having jurisdiction over PHEAA. (v) There are no actions, proceedings or investigations pending or, to the best of such counsel’s knowledge after due inquiry, threatened against PHEAA before or by any governmental authority that might materially and adversely affect the performance by PHEAA of its obligations under, or the validity or enforceability of, the PHEAA Sub-Servicing Agreements or the Guarantee Agreement (or the agreements with the Department under Section 428 of the Higher Education Act to the extent relevant to PHEAA’s obligations under such Guarantee Agreement) to which it is a party. (vi) Nothing has come to such counsel’s attention that would lead such counsel to believe that the representations and warranties of PHEAA contained in the PHEAA Sub-Servicing Agreements are other than as stated therein. (m) The Representative shall have received an opinion of counsel to Great Lakes in its capacity as a Sub-Servicer and as Guarantor, dated the Closing Date and satisfactory in form and substance to the Representative and its counsel, to the effect that: (i) Great Lakes has been duly organized and is validly existing as a Wisconsin corporation in good standing under the ~~Exchange Act~~ laws thereof with full power and ~~deemed~~ authority (corporate and other) to own its properties and conduct its business, as presently conducted by it, and to enter into and perform its obligations under the Great Lakes Sub-Servicing Agreements and the Guarantee Agreement, and had at all relevant times, and now has, the power, authority and legal right to service the Financed Student Loans it is servicing. (ii) The Great Lakes Sub-Servicing Agreements and the Guarantee Agreement have been duly authorized, executed and delivered by Great Lakes and is the legal, valid and binding obligation of Great Lakes enforceable against Great Lakes in accordance with its terms, except (x) the enforceability thereof may be ~~incorporated~~ subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (iii) Neither the execution and delivery by ~~reference~~ Great Lakes of the Great Lakes Sub-Servicing Agreements and the Guarantee Agreement, nor the consummation by Great Lakes of the transactions contemplated therein nor the fulfillment of the terms thereof by Great Lakes will conflict with, result in a breach, violation or acceleration of, or constitute a default under, any term or provision of the certificate of incorporation or by-laws of Great Lakes or of any indenture or other agreement or instrument to which Great Lakes is a party or by which Great Lakes is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to Great Lakes of any court, regulatory body, administrative agency or governmental body having jurisdiction over Great Lakes. (iv) There are no actions, proceedings or investigations pending or, to the best of such counsel’s knowledge after due inquiry, threatened against Great Lakes before or by any governmental authority that might materially and adversely affect the performance by Great Lakes of its obligations under, or the validity or enforceability of, the Great Lakes Sub-Servicing Agreements and the Guarantee Agreement. (v) Nothing has come to such counsel’s attention that would lead such counsel to believe that the representations and warranties of Great Lakes contained in the ~~Registration Statement~~Great Lakes Sub-Servicing Agreements and the Guarantee Agreement are other than as stated therein. (n) The Representative shall have received an opinion of counsel to the American Student Assistance, (“ASA”) in its capacity as Guarantor, dated the Closing Date and satisfactory in form and substance to the Representative and its counsel, to the effect that: (i) ASA has been duly incorporated and is validly existing as a non-profit corporation in good standing under the laws of the Commonwealth of Massachusetts with full power and authority (corporate and other) to own its properties and conduct its business, as presently conducted by it, and to enter into and perform its obligations under the Guarantee Agreement (and the agreements with the Department under Section 428 of the Higher Education Act to the extent relevant to ASA’s obligations under such ~~documents contain all statements of material fact required~~ Guarantee Agreement) to ~~be stated therein~~which it is a party, and ~~do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading~~had at all relevant times, and ~~since~~ now has, the ~~date~~ power, authority and legal right to guarantee the Financed Federal Loans covered by such Guarantee Agreement and to receive, subject to compliance with all applicable conditions, restrictions and limitations of the Higher Education Act, reinsurance payments from the Department with respect to claims paid by it on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set fosuch Financed Federal Loans. (ii) ASA

Appears in 1 contract

Sources: Note Underwriting Agreement (KeyCorp Student Loan Trust 2005-A)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Bonds will be subject to the accuracy of the representations and warranties on the part of the Company ~~herein set forth as of the date hereof and as of each Closing Date~~herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Company made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Prospectus shall have been ~~declared effective~~ filed by the Company with the Commission ~~not later than 5:30 p.m.~~pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the 1933 Act Regulations, ~~Washington, D.C. time, on the date of this Agreement, or such later time~~ and ~~date as~~ each Permitted Free Writing Prospectus shall have been ~~consented to~~ filed by the ~~Representatives, which consent shall be deemed to have been given if~~ Company with the ~~Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives~~ Commission pursuant to Rule ~~461 under~~ 433 within the ~~Act; all filings required~~ applicable time period prescribed for such filing by ~~Rules 424(b~~the 1933 Act Regulations (to the extent so required). (b) At or after the Applicable Time and ~~430A under~~ prior to the ~~Act shall have been timely made;~~ Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued by and no proceedings for that purpose or pursuant to Section 8A of the ~~Commission or any state securities commission nor~~1933 Act shall have been instituted or, to the knowledge of the ~~Company~~Company or you, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be threatened by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) ~~Subsequent~~ At or after the Applicable Time and prior to the ~~execution~~ Closing Date, the rating assigned by M▇▇▇▇’▇ Investors Service, Inc. or S&P Global Ratings (or any of their successors) to any debt securities or preferred stock of the Company as of the date of this ~~Agreement,~~Agreement shall not have been lowered. (id) Since the respective most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus and up to the Closing Date, there shall not have ~~occurred~~ been any material adverse change in the condition of the Company and its subsidiaries, taken as a whole, financial or ~~development involving~~otherwise, except as reflected in or ~~which could be reasonably expected~~ contemplated by the Pricing Disclosure Package and the Prospectus, and since such dates and up to ~~involve~~the Closing Date, ~~a Material Adverse Effect, whether or~~ there shall not ~~arising from~~ have been any material transaction entered into by the Company other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which ~~on the Company,~~ in ~~any such case described in clause (i) or (ii) above,~~ your reasonable judgment is ~~in the reasonable and good faith opinion of the Representatives~~ so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Shares~~ Bonds on the terms and in the manner contemplated in by the ~~Registration Statement~~ Pricing Disclosure Package and the Prospectus. (ce) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives You shall have received ~~opinions~~ an opinion of ~~Foley & Lardner, special couns~~R▇▇▇▇▇▇ ▇▇r . Beach, Esq., Associate General Counsel of Duke Energy Business Services LLC, the ~~Company~~ service company subsidiary of Duke Energy Corporation (as who in such capacity provides legal services to the ~~matters set forth below in subsections~~ Company) (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed or other appropriate counsel reasonably satisfactory to the Representatives, ~~as the representatives of the Underwriters~~which may include Duke Energy Corporation’s other “in house” counsel), ~~and~~ dated the ~~First Closing Date or the Second~~ Closing Date~~, as the case may be~~, to the effect that: (i) The Company is a corporation duly organized and validly existing ~~as a corporation~~ in good standing under the laws of ~~Delaware~~the State of Ohio, with ~~full corporate~~ power and authority (corporate and other) to ~~own, lease and operate~~ own its properties and conduct its business as ~~presently conducted and as~~ described in the Pricing Disclosure Package and the Prospectus and ~~the Registration Statement;~~to enter into and perform its obligations under this Agreement. (ii) The ~~authorized capital stock~~ Company is duly qualified to do business in each jurisdiction in which the ownership or leasing of its property or the conduct of its business requires such qualification, except where the failure to so qualify would not, singularly or in the aggregate, reasonably be expected to have a material adverse effect on the consolidated financial position, stockholder’s equity, results of operations, business or prospects of the Company ~~consists of 60,000,000 shares of Common Stock~~and its subsidiaries, ~~par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share~~taken as a whole, and ~~77,000,000 shares of preferred stock, $1.00 par value per share;~~to own and operate the properties in use in such business. (iii) ~~The issued and outstanding shares of capital stock~~ Each of the ~~Company immediately prior to the sale of the Shares hereunder have been~~ Company’s subsidiaries is duly ~~authorized~~ organized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing ~~as a corporation~~ in good standing ~~or active status~~ under the laws of ~~Tennessee, with full~~ the jurisdiction of its organization and has due corporate ~~power~~ and governmental authority to ~~own~~carry on the business in which it is engaged, ~~lease and operate its properties and to conduct its business as presently conducted and as described~~ except where the failure would not, singularly or in the ~~Prospectus and~~ aggregate, reasonably be expected to have a material adverse effect on the ~~Registration Statement; to such counsel's knowledge~~consolidated financial position, ~~the Company owns directly~~ stockholder’s equity, results of operations, business or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement prospects of the Company ~~enforceable against the Company in accordance with~~ and its ~~terms~~subsidiaries, ~~except that rights to indemnity or contribution hereunder may be limited by applicable law and except~~ taken as ~~to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally~~a whole, and ~~by equitable principles limiting~~ to own and operate the ~~right to specific performance or other equitable relief; and, to~~ properties in use in such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD);businesses. (xiv) The execution, delivery and performance of this ~~Agreement~~ Agreement, the Indenture and the Bonds and compliance by the Company with its obligations under this Agreement, the Indenture and the Bonds will ~~not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of~~not conflict with, or result in any charge or encumbrance upon any of the ~~breach, modification or termination~~ assets of the Company (other than pursuant to the Indenture) pursuant to the terms of, or constitute a default under, any agreement, ~~lease~~indenture or instrument known to such counsel, ~~franchise~~or result in a violation of the Articles or Regulations of the Company (as in effect on the Closing Date) or any order, ~~license~~rule or regulation(also as in effect on the Closing Date) of any court or governmental agency having jurisdiction over the Company, ~~indenture~~and the issuance of the Bonds in accordance with the Indenture and the sale of the Bonds in accordance with this Agreement, ~~permit~~do not and will not result in any violation by the Company of any of the terms or provisions of the Articles or Regulations, ~~mortgage~~or of the Indenture, ~~deed of trust, other evidence of indebtedness~~ or any mortgage or other agreement or instrument known to ~~which the Company or the Significant Subsidiary is a party or~~ such counsel by which the Company is bound. (v) The Indenture, including the Supplemental Indenture, is in due and proper form, has been duly and validly authorized by all necessary corporate action, has been duly executed and delivered by the Company, qualified under the 1939 Act, and, assuming due authorization, execution and delivery by the Trustee, the Indenture is a valid and binding instrument of the Company, enforceable in accordance with its terms, except as (i) the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting mortgagees’ and other creditors’ rights generally, and (ii) the rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. (vi) The issue of the Bonds by the Company in accordance with the terms of the Indenture has been duly authorized by all necessary corporate action; when duly executed by the Company, authenticated by the Trustee and delivered to and paid for by the Underwriters pursuant to this Agreement, the Bonds will constitute the legal, valid and binding obligations of the Company enforceable in accordance with their terms, secured by the lien of and entitled to the benefits provided by the Indenture, except as (i) the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting mortgagees’ and other creditors’ rights generally, and (ii) the rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. (vii) The Company has good and marketable title to the properties, rights and assets described in and conveyed by the Indenture and not released by the Trustee from the lien thereof prior to the time of delivery of the Bonds, subject only to the lien of the Indenture and to “permitted liens” as defined in the Indenture; the description in the Indenture of such properties, rights and assets is adequate to constitute the Indenture a lien thereon; the Indenture complies with all applicable laws of the State of Ohio (wherein the properties subjected or intended to be subject to the lien of the Indenture are located), including all applicable recording laws, and, subject only to the matters referred to above, constitutes a valid and direct first lien on such properties, rights and assets, which include substantially all of the Company’s tangible electric and natural gas transmission, storage and distribution utility property located in Ohio, together with the Company’s recorded easements and rights of way, franchises, licenses, permits, grants, immunities, privileges and rights that are used or useful in the operation of such property; and all tangible electric and natural gas transmission, storage and distribution utility property located in Ohio acquired by the Company subsequent to the time of issuance of the Bonds will be subject to the lien of the Indenture, subject, however, to “permitted liens” as defined in the Indenture. (viii) The Indenture, other than the Supplemental Indenture, has been duly filed for record in such manner and in such places as are required by law in order to give constructive notice of, and to establish, preserve and protect the lien of, the Indenture on all property of the Company of every kind referred to in the Indenture as subject to the lien thereof. (ix) Except as referred to in the Pricing Disclosure Package and the Prospectus, there is no action, suit or proceeding, inquiry or investigation, at law or in equity or before or by any court, public board or body, pending or, to such counsel’s knowledge, threatened against or affecting the Company, wherein an unfavorable decision, ruling or finding would (i) materially and adversely affect the condition (financial or otherwise), results of operations, business or properties of the Company or (ii) materially and adversely affect the transactions contemplated by this Agreement, or which would adversely affect the validity or enforceability of the Indenture or the ~~Significant Subsidiary~~Bonds. The descriptions in the Registration Statement, the Pricing Disclosure Package and the Prospectus of any legal or governmental proceedings are accurate and fairly present the information required to be shown, and such counsel does not know of any litigation or any legal or governmental proceeding instituted or threatened against the Company or any of ~~their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit~~ its properties that would be required to be disclosed in the Registration Statement; , the Pricing Disclosure Package or the Prospectus and is not so disclosed. (Cx) ~~violate~~ Order of the PUCO issued on June 19, 2019 in Case No. 19-637-GE-AIS, relating to the issuance of the Bonds have been duly entered and, to such counsel’s knowledge, have not been modified or repealed in any ~~statute, ordinance, order, rule, decree~~ respect and are in full force and effect. The issuance and sale of the Bonds to the Underwriters are in conformity with the terms of such orders. Except as may be required under the 1933 Act or ~~regulation~~ the securities or Blue Sky laws of any ~~court~~jurisdiction, ~~regulatory~~ no further consent, approval, authorization or order of, or registration or filing with, any court or governmental ~~body~~or public agency, ~~arbitrator~~authority or body is required with respect to the Company for the execution, ~~administrative agency~~ delivery and performance of this Agreement, the Indenture or ~~other instrumentality~~ the Bonds, the issuance by the Company of the ~~United States having jurisdiction over~~ Bonds or the consummation by the Company of the transactions contemplated by this Agreement, the Indenture or the ~~Significant Subsidiary (assuming compliance with all applicable federal and state securities laws);~~Bonds. (xi) To This Agreement has been duly authorized, executed and delivered by the Company. In addition, such counsel shall state that no facts have come to such counsel~~'s knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company,~~ ’s attention that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although caused such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration ~~Statement including any document incorporated by reference therein~~Statement, ~~on its effective date~~at the Applicable Time, contained ~~any~~ an untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, ~~or any amendment or supplement thereto including any document incorporated by reference therein,~~ as of its ~~issue~~ date and as of the Closing Date, contained or contains ~~any~~ an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (~~provided~~ except that in each case such counsel need not express an opinion as to (i) the financial statements and other financial and accounting data included or incorporated by reference therein or excluded therefrom, including with respect to compliance with XBRL interactive data, (ii) the statement of the eligibility and qualification of the Trustee included in the Registration Statement or (iii) the information in the Prospectus Supplement under the caption “Book-Entry System.”). Such counsel shall further state that, in addition, no facts have come to such counsel’s attention that have caused such counsel to believe that the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that such counsel need not express ~~no belief regarding~~ an opinion as to (i) the financial statements and ~~related schedules and~~ other financial and accounting data included or ~~statistical data contained in the Registration Statement, any amendment thereto including any document~~ incorporated by reference ~~therein~~therein or excluded therefrom, or including with respect to XBRL interactive data requirements, (ii) the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention statement of the ~~attorneys~~ eligibility and qualification of the Trustee included in ~~such firm who have been involved in the preparation or review of~~ the Registration Statement or (iii) the information in the Prospectus ~~that would give them actual current knowledge of~~ Supplement under the ~~existence or absence of~~ caption “Book-Entry System”). Such counsel shall expressly authorize the Underwriters to rely on such ~~matter in question~~counsel’s opinion dated the Closing Date delivered to the Trustee pursuant to the Indenture. In rendering ~~such~~ the foregoing opinion, such counsel ~~for~~ may state that such counsel does not express any opinion concerning any law other than the ~~Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers~~ laws of the ~~Company~~ State of Ohio and ~~any governmental officials, and copies~~ the Commonwealth of ~~all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date~~Kentucky. (ef) ~~The Representatives~~ You shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇Hunton A▇▇▇▇▇▇ ▇▇▇▇~~sel and Secretary~~▇ LLP, of counsel to the Company, ~~in their respective capacities as such~~dated the Closing Date, to the effect that: (i) The ~~representations~~ Supplemental Indenture has been duly authorized, executed and ~~warranties~~ delivered by the Company, and assuming due authorization, execution and delivery by the Trustee, the Indenture constitutes a legal, valid and binding obligation of the Company ~~set forth~~ enforceable against the Company in ~~Section 2 hereof are true~~ accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and ~~correct as of the date of this Agreement~~ other similar laws affecting mortgagees’ and ~~as of the date of such certificate~~other creditors' rights generally from time to time in effect, and ~~the Company has complied~~ to general principals of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in ~~all material respects with all the agreements and satisfied all the conditions to be performed~~ a proceeding in equity or ~~satisfied by it~~ at ~~or prior to the date of such certificate;~~law). (ii) The ~~Commission has not issued an order preventing or suspending~~ Bonds have been duly authorized and, when executed and authenticated in accordance with the ~~use~~ provisions of the ~~Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending~~ Indenture and delivered to and paid for by the ~~effectiveness~~ Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the ~~Registration Statement has been issued;~~ Company entitled to the benefits of the Indenture and enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting mortgagees’ and other creditors’ rights generally from time to time in effect and to ~~the knowledge~~ general principals of ~~the respective signatories~~equity, ~~no proceedings for that purpose have been initiated~~ including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or ~~are pending under the Act or under the Blue Sky Laws of any jurisdiction;~~at law). (iii) ~~Each~~ This Agreement has been duly authorized, executed and delivered by the Company. (iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “Description of the ~~respective signatories has examined~~ Mortgage Bonds” and “Description of First Mortgage Bonds,” insofar as such statements purport to summarize certain provisions of the ~~Registration Statement~~ Indenture and the Bonds, fairly summarize such provisions in all material respects. (v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Certain U.S. Federal Income Tax Considerations for Non-U.S. Holders,” insofar as such statements purport to constitute summaries of matters of United States federal income tax law, constitute accurate and complete summaries, in all material respects, subject to the qualifications set forth therein. (vi) The Company is not, and solely after giving effect to the offering and sale of the Bonds and the application of the proceeds thereof as described in the Prospectus, will not be subject to registration and ~~any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference~~ regulation as an “investment company” as such term is defined in the ~~Registration Statement~~Investment Company Act of 1940, as amended. In rendering the foregoing opinions, such counsel may state that it has relied as to certain factual matters on information obtained from public officials, officers and ~~such documents contain all statements~~ representatives of ~~material fact required to be stated therein,~~ the Company and ~~do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make~~ has assumed that the ~~statements therein not misleading, and since the date~~ signatures on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set foal

Appears in 1 contract

Sources: Underwriting Agreement (Duke Energy Ohio, Inc.)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of KBNA and the ~~Company herein set forth as of the date hereof and as of each Closing Date~~Depositor herein, to the accuracy of the written statements of officers of KBNA and the ~~Company's officers~~ Depositor made pursuant to the provisions ~~hereof~~of this Section, to the performance ~~in all material respects~~ by KBNA and the ~~Company~~ Depositor of ~~its~~ their obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) ~~The Registration Statement~~ If the Effective Time is not prior to the execution and delivery of this Agreement, the Effective Time shall have ~~been declared effective by the Commission~~ occurred not later than ~~5:30~~ 6:00 p.m., ~~Washington, D.C.~~ New York City time, on the date of this ~~Agreement,~~ Agreement or such later time ~~and~~ or date as shall have been consented to by the ~~Representatives~~Representative. (b) If the Effective Time is prior to the execution and delivery of this Agreement, ~~which consent shall be deemed to have been given if~~ the ~~Registration Statement~~ Prospectus and any supplements thereto shall have been ~~declared effective on or before~~ filed with the ~~date~~ Commission in accordance with the Rules and ~~time requested in~~ Regulations and Section 5(a) hereof. Prior to the ~~acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made;~~ Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Seller or the Representative, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) The Representative shall have received a letter, dated on or prior to the Closing Date of Ernst & Young LLP on behalf of KBNA confirming that such accountants are independent public accountants within the meaning of the Securities Act and the applicable published Rules and Regulations thereunder, and substantially in the form of the drafts to which the Representative has previously agreed and otherwise in form and substance reasonably satisfactory to the Representative and its counsel. (d) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred (i) any ~~change or development involving~~change, or ~~which could be reasonably expected to involve~~any development involving a prospective change, ~~a Material Adverse Effect~~in or affecting particularly the business or properties of the Trust, ~~whether~~ KBNA or ~~not arising from transactions~~ KeyCorp which, in the ~~ordinary course~~ judgment of ~~business~~the Representative, ~~and~~ materially impairs the investment quality of the Notes or makes it impractical or inadvisable to market the Notes; (ii) any downgrading in the ~~Company shall not have sustained~~ rating of any ~~loss~~ debt securities of KBNA or ~~interference from~~ KeyCorp by any ~~labor dispute~~“nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), ~~strike~~or any public announcement that any such organization has under surveillance or review its rating of any debt securities of KBNA or KeyCorp (other than an announcement with positive implications of a possible upgrading, ~~fire~~and no implication of a possible downgrading, ~~flood~~of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, ~~windstorm~~or any setting of minimum prices for trading on such exchange; (iv) any suspension of trading of any securities of KBNA or KeyCorp on any exchange or in the over-the-counter market; (v) any banking moratorium declared by Federal or New York authorities; or (vi) any outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, ~~accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect,~~ if the effect of ~~which on the Company, in~~ any such ~~case described~~ event specified in this clause (ivi) ~~or (ii) above, is~~ in the ~~reasonable and good faith opinion~~ judgment of the ~~Representatives so material and adverse as to make~~ Representative makes it impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Shares~~ Notes on the terms and in the manner contemplated in the ~~Registration Statement and the~~ Prospectus. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives shall have received opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The ~~Representatives~~ Representative shall have received an opinion of ~~Michael Best & Friedrich LLP~~internal counsel of KBNA, as counsel for (i) KBNA, as the Seller, the Master Servicer and the Administrator and (ii) the Depositor, dated the Closing Date, substantially in the form attached hereto as Exhibit A, or as is otherwise satisfactory in form and substance to the Representative and its counsel. (f) The Representative shall have received one or more opinions of ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP, counsel to the Depositor and the Seller, dated the Closing Date, in the form attached hereto as Exhibit B, or as is otherwise satisfactory in form and substance to the Representative and its counsel, regarding certain true sale, bankruptcy, insolvency and perfection of security interest matters regarding the Seller, the Depositor and the Trust. (g) [Reserved]. (h) [Reserved]. (i) The Representative shall have received an opinion addressed to the several Underwriters of ▇▇▇▇▇▇▇▇ ▇~~ters~~▇▇▇ LLP, in its capacity as Federal tax and ERISA counsel for the Trust, to the effect that the statements in the Prospectus under the headings “Summary of Terms—Tax Status” and “Federal Tax Consequences for Trusts in which all Certificates are Retained by the Seller, the Depositor or a Third Party Originator” accurately describe the material Federal income tax consequences to holders of the Notes, and the statements in the Prospectus under the headings “Summary of Terms—ERISA Considerations” and “ERISA Considerations” to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, have been prepared or reviewed by such counsel and accurately describe the material consequences to holders of the Notes under ERISA. ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP, in its capacity as special counsel to the Trust, shall have delivered an opinion with respect to the characterization of the transfer of the Financed Student Loans. (j) The Representative shall have received an opinion addressed to the several Underwriters of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, in its capacity as special counsel to the several Underwriters, dated the ~~First Closing Date or the Second~~ Closing Date~~, as the case may be~~, with respect to the ~~sale~~ validity of the ~~Shares hereunder, the Registration Statement~~ Notes and such other related matters as the ~~Representatives may~~ Representative shall reasonably ~~require,~~ require and each of KBNA and the ~~Company~~ Depositor shall have furnished or caused to be furnished to such counsel such documents ~~and shall have exhibited to them such papers and records~~ as ~~such counsel~~ they may reasonably request for the purpose of enabling them to pass upon such matters. (fk) The ~~Representatives~~ Representative shall have received ~~on each Closing Date, a certificate~~ an opinion of ~~Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇~~the law offices of ▇▇▇▇ ▇▇▇▇~~sel and Secretary~~, of special student loan counsel to the ~~Company~~Representative and, in ~~their respective capacities as such~~the case of clause (iii) below, special student loan counsel to the Eligible Lender Trustee, dated the Closing Date, satisfactory in form and substance to the Representative, to the effect that: (i) ~~The representations~~ the agreements implementing the Programs, (including the Coordination Agreements) and ~~warranties of~~ the ~~Company set forth~~ Relevant Documents (as defined in ~~Section 2 hereof are true and correct as of the date of this Agreement and as of the date of~~ such ~~certificate~~opinion), and the ~~Company has complied~~ transactions contemplated by the Relevant Documents, conform in all material respects to the applicable requirements of the Higher Education Act, and that, upon the due authorization, execution and delivery of the Relevant Documents and the consummation of such transactions, the Financed Federal Loans, legal title to which will be held by the Eligible Lender Trustee on behalf of the Trust, will qualify, subject to compliance with all ~~the agreements~~ applicable origination and ~~satisfied~~ servicing requirements, for all ~~the conditions to be performed or satisfied by it at or prior to the date of such certificate~~applicable federal assistance payments, including federal reinsurance and federal interest subsidies and special allowance payments; (ii) ~~The Commission~~ such counsel has ~~not issued an order preventing or suspending~~ examined the ~~use of~~ Prospectus, and nothing has come to such counsel’s attention that would lead such counsel to believe that, solely with respect to the ~~Prospectus or any Preliminary~~ Higher Education Act and the student loan business, the Prospectus or any amendment or supplement ~~thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge~~ thereto as of the respective ~~signatories~~dates thereof or on the Closing Date contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein not misleading; and (iii) the Eligible Lender Trustee is an “eligible lender” as such term is defined in Section 435(d) of the Higher Education Act for purposes of holding legal title to the Financed Federal Loans. (l) The Representative shall have received an opinion of counsel to PHEAA, ~~no proceedings for that purpose have~~ in its capacity as Subservicer and as Guarantor, dated the Closing Date and satisfactory in form and substance to the Representative and its counsel, to the effect that: (i) PHEAA has been ~~initiated or are pending~~ duly organized and is validly existing as an agency of the Commonwealth of Pennsylvania in good standing under the ~~Act or~~ laws thereof with full power and authority (corporate and other) to own its properties and conduct its business, as presently conducted by it, and to enter into and perform its obligations under the ~~Blue Sky Laws~~ PHEAA Subservicing Agreements and the Guarantee Agreement (and the agreements with the Department under Section 428 of the Higher Education Act to the extent relevant to PHEAA’s obligations under such Guarantee Agreement) to which it is a party, and had at all relevant times, and now has, the power, authority and legal right to service the Financed Student Loans it is servicing, to guarantee the Financed Federal Loans covered by such Guarantee Agreement and to receive, subject to compliance with all applicable conditions, restrictions and limitations of the Higher Education Act, reinsurance payments from the Department with respect to claims paid by it on such Financed Federal Loans. (ii) PHEAA is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals in each jurisdiction in which failure to qualify or to obtain such license or approval would render any ~~jurisdiction;~~Financed Student Loan or PHEAA’s obligation under its Guarantee Agreement unenforceable by or on behalf of the Trust. (iii) Each of the ~~respective signatories has examined the Registration Statement~~ PHEAA Subservicing Agreements and the ~~Prospectus~~Guarantee Agreement (and the agreements with the Department under Section 428 of the Higher Education Act to the extent relevant to PHEAA’s obligations under such Guarantee Agreement) to which PHEAA is a party has been duly authorized, executed and delivered by PHEAA and is the legal, valid and binding obligation of PHEAA enforceable against PHEAA in accordance with its terms, notwithstanding the existence of any doctrine of sovereign immunity except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights, and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any ~~amendment~~ proceeding therefor may be brought. (iv) Neither the execution and delivery by PHEAA of the PHEAA Subservicing Agreements or ~~supplement thereto~~the Guarantee Agreement to which it is a party, ~~including~~ nor the consummation by PHEAA of the transactions contemplated therein nor the fulfillment of the terms thereof by PHEAA will conflict with, result in a breach, violation or acceleration of, or constitute a default under, any ~~documents filed~~ term or provision of PHEAA's authorizing legislation or by-laws of PHEAA or of any indenture or other agreement or instrument to which PHEAA is a party or by which PHEAA is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to PHEAA of any court, regulatory body, administrative agency or governmental body having jurisdiction over PHEAA. (v) There are no actions, proceedings or investigations pending or, to the best of such counsel’s knowledge after due inquiry, threatened against PHEAA before or by any governmental authority that might materially and adversely affect the performance by PHEAA of its obligations under, or the validity or enforceability of, the PHEAA Subservicing Agreements or the Guarantee Agreement (or the agreements with the Department under Section 428 of the Higher Education Act to the extent relevant to PHEAA’s obligations under such Guarantee Agreement) to which it is a party. (vi) Nothing has come to such counsel’s attention that would lead such counsel to believe that the representations and warranties of PHEAA contained in the PHEAA Subservicing Agreements are other than as stated therein. (m) The Representative shall have received an opinion of counsel to GLELSI in its capacity as a Subservicer, dated the Closing Date and satisfactory in form and substance to the Representative and its counsel: (i) GLELSI has been duly organized and is validly existing as a Wisconsin corporation in good standing under the ~~Exchange Act~~ laws thereof with full power and ~~deemed~~ authority (corporate and other) to own its properties and conduct its business, as presently conducted by it, and to enter into and perform its obligations under the GLELSI Subservicing Agreements, and had at all relevant times, and now has, the power, authority and legal right to service the Financed Student Loans it is servicing. (ii) The GLELSI Subservicing Agreements has been duly authorized, executed and delivered by GLELSI and is the legal, valid and binding obligation of GLELSI enforceable against GLELSI in accordance with its terms, except (x) the enforceability thereof may be ~~incorporated~~ subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (iii) Neither the execution and delivery by ~~reference~~ GLELSI of the GLELSI Subservicing Agreements, nor the consummation by GLELSI of the transactions contemplated therein nor the fulfillment of the terms thereof by GLELSI will conflict with, result in a breach, violation or acceleration of, or constitute a default under, any term or provision of the certificate of incorporation or by-laws of GLELSI or of any indenture or other agreement or instrument to which GLELSI is a party or by which GLELSI is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to GLELSI of any court, regulatory body, administrative agency or governmental body having jurisdiction over GLELSI. (iv) There are no actions, proceedings or investigations pending or, to the best of such counsel’s knowledge after due inquiry, threatened against GLELSI before or by any governmental authority that might materially and adversely affect the performance by GLELSI of its obligations under, or the validity or enforceability of, the GLELSI Subservicing Agreements. (v) Nothing has come to such counsel’s attention that would lead such counsel to believe that the representations and warranties of GLELSI contained in the ~~Registration Statement, and such documents contain all statements of material fact required to be~~ GLELSI Subservicing Agreements are other than as stated therein~~, and do not include any untrue statement~~ . (n) The Representative shall have received an opinion of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment counsel to the ~~Registration Statement that has not been so set fo~~American Student Assistance, (“ASA”) dated the Closing Date and reasonably satisfactory in form and substance to the Representative and its counsel. (o) The Representative shall have received an opinion of counsel to the National Student Loan Program (“NSLP”), dated the Closing Date and reasonably satisfactory in form and substance to the Representative and its counsel. (p) The Representative shall have received an opinion of counsel to the California Student Aid Commission (“CSAC”), dated the Closing Date and reasonably satisfactory in form and substance to the Representative and its counsel. (q) The Representative shall have received an opinion of counsel to Colorado Student Loan Program (“CSLP”), dated the Closing Date and reasonably satisfactory in form and substance to the Representative and its counsel. (r) The Representative shall have received an officer’s certificate from the New York State Higher Education Services Corporation (“NYHESC”), dated the Closing Date and reasonably satisfactory in form and substance to the Representative and its counsel. (s) The Representative shall have received an opinion of counsel to the Educational Credit Management Corporation (“ECMC”), dated the Closing Date and reasonably satisfactory in form and substance to the Representative and its counsel. (t) The Representative shall have received an opinion of counsel to United Student Aid Funds, Inc. (“USAF”), dated the Closing Date and reasonably satisfactory in form and substance to the Representative and its counsel. (u) The Representative shall have received an officer’s certificate from the Michigan Higher Education Assistance Authority (“MHEAA”), dated the Closing Date and reasonably satisfactory in form and substance to the Representative and its counsel. (v) The Representative shall have received an opinion of counsel to Great Lakes Higher Education Guaranty Corporation (“GLHEGC”), dated the Closing Date and satisfactory in form and substance to the Representativ

Appears in 1 contract

Sources: Note Underwriting Agreement (KeyCorp Student Loan Trust 2006-A)

Appears in 1 contract

Sources: Underwriting Agreement (Nissan Auto Receivables Corp Ii)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Securities will be subject to the accuracy of the representations and warranties on the part of the Company ~~herein set forth as of~~ and the ~~date hereof and as of each Closing Date~~Guarantor contained herein, to the accuracy of the statements of the ~~Company's~~ officers of the Company and the Guarantor made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company and the Guarantor of ~~its~~ their obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) ~~The Registration Statement shall have been declared effective by the Commission not later than 5:30 p.m., Washington, D.C. time, on~~ On the date of this ~~Agreement~~Agreement and on the Delivery Date, ~~or such later time and date as~~ the Representatives shall have ~~been consented~~ received executed copies of letters of Coopers & ▇▇▇▇▇▇▇ L.L.P., and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, addressed to the Company, the Guarantor and the Representatives, substantially in the forms previously approved by the Representatives, which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b. (b) ~~and 430A under the Act shall have been timely made; no~~ No stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company, ~~shall any proceedings for that purpose have been instituted or threatened; and any request of~~ the ~~Commission~~ Guarantor or any ~~state securities commission for inclusion of additional information in the Registration Statement, or otherwise~~Underwriter, shall ~~have been complied with to~~ be contemplated by the reasonable satisfaction of the Representatives acting in good faith. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the ProspectusCommission. (c) The Representatives shall ~~not~~ have ~~advised~~ received an opinion or opinions, dated the ~~Company that the Registration Statement or Prospectus contains an untrue statement~~ Delivery Date, of ~~fact that~~Weil, ~~in the reasonable and good faith opinion of the Representatives or~~ Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives shall have received opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company ~~(as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)),~~ and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may beGuarantor, to the effect that: (i) The Company is a corporation duly incorporated, validly existing ~~as a corporation~~ and in good standing under the laws of ~~Delaware, with full corporate power~~ the State of Colorado and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full has all requisite corporate power and authority to own, lease and operate its properties and to ~~conduct~~ carry on its business as ~~presently conducted~~ now being conducted. (ii) The Guarantor is a corporation duly incorporated, validly existing and in good standing under the laws of the state of its incorporation and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as ~~described~~ now being conducted. (iii) The execution, delivery and performance of the Indenture by the Company and the Guarantor have been duly authorized by all necessary corporate action on the part of the Company and the Guarantor. The Indenture has been duly and validly executed and delivered by the Company and the Guarantor and (assuming the due authorization, execution and delivery thereof by the Trustee), constitutes the legal, valid and binding agreement of the Company and the Guarantor enforceable against each of them in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditor's rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). The Indenture has been duly qualified under the ▇▇▇▇ ▇▇▇. (iv) The Securities, when duly executed and authenticated in the ~~Prospectus~~ manner contemplated in the Indenture and ~~the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the~~ issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the ~~Representatives or upon the order of the Representatives~~ Underwriters against payment ~~of the agreed consideration~~ therefor in accordance with the provisions hereof, will constitute legal, valid and binding obligations of ~~this Agreement~~the Company, entitled to the ~~Shares represented thereby will be duly authorized~~ benefits of the Indenture and ~~validly issued~~enforceable against the Company in accordance with their terms, ~~fully paid~~ subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and ~~nonassessable (except~~similar laws affecting creditor's rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). (v) The Guarantees, when duly executed in the ~~extent applicable~~manner contemplated in the Indenture and issued and delivered to the Underwriters in accordance with the provisions hereof, will constitute legal, valid and binding obligations of the Guarantor enforceable against the Guarantor in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditor's rights and remedies generally, and subject, as ~~otherwise provided~~ to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in ~~Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted~~a proceeding at law or in equity);. (vi) The execution, delivery and performance of this Agreement by the Company and the Guarantor have been duly authorized by all necessary corporate action on the part of the Company and the Guarantor; and this Agreement has been duly and validly executed and delivered by each of the Company and the Guarantor. (vii) No consent, approval, authorization or other action by, or filing or registration with, any federal governmental authority is required in connection with the execution and delivery by the Company or the Guarantor of the Indenture or the issuance and sale of the Securities and the Guarantees to the Underwriters pursuant to the terms of this Agreement, except such as have been obtained or made under the 1933 Act and the rules and regulations thereunder and such as may be required under the 1934 Act and the rules and regulations thereunder. (viii) The Registration Statement ~~has become~~ was declared effective under the 1933 Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no ~~proceedings~~ proceeding for that purpose ~~have~~ has been ~~instituted~~ initiated or ~~are~~ threatened by the Commission; . (ix) The statements in the Prospectus under the headings "Description of Debt Securities and Guarantees" and "Description of Notes and Debentures", insofar as such statements constitute a summary of certain provisions of the documents referred to therein, are accurate in all material respects. In rendering such opinion, such counsel may rely as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and the Guarantor and of public officials. Such counsel may also rely as to matters of Colorado law upon the opinion referred to in Section 5(e) without independent verification. In addition, such counsel shall state that it has participated in conferences with representatives of the Company, the Guarantor and with the Representatives and their counsel, at which conferences the contents of the Registration Statement and the Prospectus and related matters were discussed; such counsel has not independently verified and are not passing upon and assume no responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus and the limitations inherent in the examination made by such counsel and the nature and extent of such counsel's participation in such conferences are such that such counsel is unable to assume, and does not assume, any ~~amendment~~ responsibility for the accuracy, completeness or ~~supplement thereto~~fairness of such statements; however, ~~including~~ based upon such counsel's participation in the aforesaid conferences, no facts have come to its attention which lead it to believe that the Registration Statement, at the time it became effective or at the date of this Agreement, and the Prospectus and any ~~document incorporated~~ further amendments and supplements thereto made by ~~reference into~~ the Company and the Guarantor prior to such Delivery Date (other than the financial statements and related notes and other financial, statistical and accounting data contained therein or Exhibit 25 to the Registration Statement as to which such counsel need express no belief) did not comply as to form in all material respects with the applicable requirements of the 1933 Act, the 1934 Act and the rules and regulations thereunder or that the Registration Statement (except ~~for~~ as to the financial statements and ~~schedules~~ the notes thereto, and the other financial, statistical ~~or financial~~ and accounting data included therein, as to which such counsel need express no ~~opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3~~belief), ~~set forth in the General Instructions~~ and each amendment thereto, ~~have~~ as of its effective date (or, if an annual report on Form 10-K has been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed Guarantor with the Commission ~~on December 9, 1994, and in~~ subsequent to the ~~Registration Statement under Item 15 insofar as such statements constitute a summary~~ effectiveness of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement~~; or (C) violate any statute~~, ~~ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality~~ then at the time of the ~~United States having jurisdiction over~~ most recent such filing) or at the ~~Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders~~ date of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective datethis Agreement, contained any untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not ~~misleading,~~ misleading or ~~that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein~~that, as of its issue date ~~and as of~~ or at the ~~Closing~~ Delivery Date, the Prospectus (except as to the financial statements and the notes thereto, and the other financial, statistical and accounting data included therein, as to which such counsel need express no belief), and each amendment or supplement thereto contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary ~~in order~~ to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading (provided~~ misleading. Such opinion may state that ~~such counsel need express no belief regarding~~ it does not address the ~~financial statements and related schedules and other financial~~ impact on the opinions contained therein of any litigation or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "ruling relating to the ~~knowledge~~ divestiture by American Telephone and Telegraph Company of ~~such counsel," such qualification~~ ownership of its operating telephone companies (the "Divestiture"). (d) The Representatives shall ~~signify that no information has come~~ have received from Underwriters' Counsel an opinion, dated the Delivery Date, to the ~~attention~~ effect specified in clauses (i), (ii), (iii), (iv), (v), (vi), (viii) and (ix) and the penultimate paragraph of subsection (c) above, subject to the ~~attorneys in~~ final paragraph of subsection (c) above, and with respect to such ~~firm who have been involved in~~ other matters as the ~~preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question~~Representatives may reasonably request. In rendering such opinion, such counsel ~~for the Company~~ may ~~rely, to the extent counsel deems such reliance proper,~~ rely as to matters of ~~fact~~ Colorado law upon ~~certificates of officers of~~ the ~~Company and any governmental officials, and copies of all such certificates shall be furnished~~ opinion referred to ~~the Representatives and for the Underwriters on or before each Closing Date~~in Section 5(e) without independent verification. (e) The Representatives shall have received an opinion ~~of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters~~or opinions, dated the ~~First Closing Date or the Second Closing~~ Delivery Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the ~~Company, in their respective capacities as such~~Corporate Counsel of the Company or the Corporate Counsel of the Guarantor, to the effect that: (i) The ~~representations~~ Company is a corporation duly incorporated, validly existing and ~~warranties~~ in good standing under the laws of the State of Colorado and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted. (iv) The Guarantor is a corporation duly incorporated, validly existing and in good standing under the laws of the state of its incorporation and has all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted. (v) The execution, delivery and performance of the Indenture by the Company and the Guarantor have been duly authorized by all necessary corporate action on the part of the Company ~~set forth in Section 2 hereof are true~~ and ~~correct as~~ the Guarantor. The Indenture has been duly and validly executed and delivered by the Company and the Guarantor and (assuming the due authorization, execution and delivery thereof by the Trustee), constitutes the legal, valid and binding agreement of the ~~date~~ Company and the Guarantor enforceable against each of ~~this Agreement~~ them in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and ~~as of the date of such certificate~~similar laws affecting creditor's rights and remedies generally, and ~~the Company has complied~~ subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in ~~all material respects with all the agreements and satisfied all the conditions to be performed~~ a proceeding at law or ~~satisfied by it at or prior to the date of such certificate; (ii)~~ in equity). The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement Indenture has been ~~issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending~~ duly qualified under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set fo▇▇▇▇ ▇▇▇.

Appears in 1 contract

Sources: Underwriting Agreement (U S West Inc /De/)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement~~ to purchase and pay for the Underwritten Shares on the First Closing Date and the Option Shares on the Second Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company herein set forth as of the ~~date hereof and as of each~~ First Closing Date or the Second Closing Date, as the case may be, to the accuracy of the statements of officers of the ~~Company's officers~~ Company made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company of its obligations hereunder, and to the following additional conditions~~, unless waived in writing by the Representatives~~: (a) The Registration Statement shall have ~~been declared~~ become effective by and prior to the ~~Commission not later than 5:30 p.m.~~First Closing Date or Second Closing Date, ~~Washington~~as the case may be, D.C. time, on the date of this Agreement, or such later time and date as shall have been consented to by the Representatives, which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission~~ and no proceedings for that purpose shall have been instituted or ~~any state securities commission nor~~shall be pending or, to the knowledge of the ~~Company~~Company or you, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) If the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effecthas elected to rely upon Rule 430B, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with information concerning the public offering ~~or the delivery~~ price of the Shares and price-related information, and such other information omitted from the Prospectus in reliance on Rule 430B, shall have been filed with the ~~terms and~~ Commission pursuant to Rule 424(b) in the manner ~~contemplated in~~ and within the ~~Registration Statement~~ prescribed time period (without reliance on Rule 424(b)(8)) and the ~~Prospectus~~Company will provide evidence satisfactory to the Representative of such timely filing (or a post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rules 430B and 424(b)). (c) If a Rule 462(b) Registration Statement is required, such Registration Statement shall have been transmitted to the Commission for filing and become effective within the prescribed time period and, prior to the First Closing Date, the Company shall have provided evidence of such filing and effectiveness in accordance with Rule 462(b). (d) The ~~Representatives~~ Common Stock, including the Shares, is listed on the NASDAQ Global Market and is a “covered security” as defined in Section 18 of the 1933 Act. (e) The legality and sufficiency of the authorization, issuance and sale or transfer and sale of the Shares hereunder, the validity and form of the Shares, the execution and delivery of this Agreement and the Pricing Agreement, and all corporate proceedings and other legal matters incident thereto, and the form of the Registration Statement, any Preliminary Prospectus and the Prospectus (except financial statements) shall have been approved by counsel for the Underwriters exercising reasonable judgment. (f) The Representative shall not have objected in writing to the Registration Statement, any Preliminary Prospectus or the Prospectus, or the Representative shall not have advised the Company that the Registration ~~Statement~~ Statement, any Preliminary Prospectus or the Prospectus contains an untrue statement of ~~fact that~~fact, which, in the ~~reasonable and good faith~~ opinion of the ~~Representatives or counsel for the Underwriters~~Representative, is material or omits to state a fact ~~that~~which, in the ~~reasonable and good faith~~ opinion of the ~~Representatives or such counsel~~Representative, is material and is required to be stated therein or necessary to make the statements therein not misleading. (dg) ~~The Representatives shall have received opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company (as~~ Subsequent to the ~~matters set forth below~~ execution and delivery of this Agreement, there shall not have occurred any change, or any development involving a prospective change, in ~~subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and~~ or affecting particularly the ~~Vice President, General Counsel and Secretary~~ business or properties of the Company or its subsidiaries, whether or not arising in the ordinary course of business, which, in the judgment of the Representative, makes it impractical or inadvisable to proceed with the public offering or purchase of the Shares as contemplated hereby and in the Prospectus. (as h) There shall have been furnished to the ~~matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives~~Representative, as ~~the representatives~~ Representative of the Underwriters, on the First Closing Date or the Second Closing Date, as the case may be, except as otherwise expressly provided below: (i) An opinion of The ▇▇▇▇▇▇ Law Firm, PLLC, counsel for the Company, addressed to the Underwriters and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described substantially in the ~~Prospectus and the Registration Statement;~~form set forth on Exhibit B hereto. (ii) ~~The authorized capital stock~~ An opinion of Holland & ▇▇▇▇ LLP, special Nevada counsel for the ~~Company consists of 60,000,000 shares of Common Stock~~Company, ~~par value $1.00 per share~~addressed to the Underwriters and dated the First Closing Date or the Second Closing Date, ~~14,000,000 shares of Class A common stock~~as the case may be, ~~par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share;~~substantially in the form set forth on Exhibit C hereto. (iii) ~~The issued and outstanding shares~~ An opinion of ~~capital stock of~~ GuangDong Tuo Jin Law Firm, PRC counsel for the ~~Company immediately prior~~ Company, addressed to the ~~sale of~~ Underwriters and dated the ~~Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to~~ First Closing Date or the ~~extent applicable~~Second Closing Date, as ~~otherwise provided in Section 180.0622(2)(b) of~~ the ~~Wisconsin Business Corporation Law~~case may be, ~~as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described~~ substantially in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights;form set forth on Exhibit D hereto. (iv) ~~The Significant Subsidiary is validly existing as a corporation in good standing~~ Such opinion or ~~active status under the laws~~ opinions of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best Winston & ~~Friedrich LLP, ▇~~▇▇▇▇▇▇ LLP, U.S. counsel for the Underwriters and ▇▇▇ ▇▇ Law Offices, PRC counsel for the ~~▇▇▇▇▇▇▇▇ters~~Underwriters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the ~~sale~~ existence of the ~~Shares hereunder~~Company, the ~~Registration Statement~~ validity of the Shares, the Prospectus and other related matters as ~~the Representatives~~ you may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as ~~such counsel reasonably~~ they request for the purpose of enabling them to pass upon such matters. (fv) ~~The Representatives shall have received on each Closing Date, a~~ A certificate of ~~Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer,~~ the chief executive officer and ~~W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary,~~ the principal financial officer of the Company, ~~in their respective capacities~~ dated the First Closing Date or the Second Closing Date, as ~~such~~the case may be, to the effect that: (i1) ~~The~~ the representations and warranties of the Company set forth in Section 2 ~~hereof~~ of this Agreement are true and correct as of the date of this Agreement and as of the ~~date of such certificate~~First Closing Date or the Second Closing Date, as the case may be, and the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~by it~~ at or prior to ~~the date of~~ such ~~certificate~~Closing Date; (ii2) ~~The~~ the Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus filed as a part of the Registration Statement or any amendment ~~or supplement~~ thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the best knowledge of the respective ~~signatories~~signers, no proceedings for that purpose have been ~~initiated~~ instituted or are pending or contemplated under the ~~Act or under the Blue Sky Laws of any jurisdiction;~~1933 Act; and (~~iii~~3) ~~Each~~ subsequent to the date of the ~~respective signatories~~ most recent financial statements included in the Registration Statement and Prospectus, and except as set forth or contemplated in the Prospectus, (A) none of the Company and its subsidiaries has ~~examined~~ incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions not in the ordinary course of business, and (B) there has not been any material adverse change in the condition (financial or otherwise), business, assets or operations of the Company and its subsidiaries, taken as a whole, or any change in the capital stock or any material change in their short-term debt or long-term debt. The delivery of the certificate provided for in this subparagraph shall be and constitute a representation and warranty of the Company as to the facts required in the immediately foregoing clauses (1), (2) and (3) of this subparagraph to be set forth in said certificate. (vi) A certificate of the chief executive officer and the principal financial officer of the Company, dated the First Closing Date or the Second Closing Date, as the case may be, verifying that the specific statistical or financial figures included in the Prospectus which have not been otherwise verified by the letters referred to in subsection (i) below are accurate in all material respects, such verification to include the provision of documentary evidence supporting any such statistical or financial figures. (vii) Such further certificates and documents as you may reasonably request. (i) Concurrent with execution of this Agreement, there shall be delivered to you a letter addressed to the Underwriters, from Goldman, Parks, ▇▇▇▇▇▇▇ & Mohidin, L.L.P., independent registered public accountant firm (“▇▇▇▇▇▇▇ Parks”), to be dated as of the Applicable Time, which letter shall cover, without limitation, the various financial disclosures, if any, contained in the Registration Statement and Prospectus as of such date and shall contain statements and information of the type customarily included in accountants’ “comfort letters” to underwriters, delivered according to Statement of Auditing Standards No. 72 and Statement of Auditing Standard No. 100 (or successor bulletins), with respect to the audited and unaudited financial statements and certain financial information contained in or incorporated by reference into the Registration Statement and the ~~Prospectus~~Prospectus (the “Original Letter”). At the First Closing Date and, ~~and any amendment~~ if the Overallotment Option is exercised, the Second Closing Date, as applicable, you shall have received from ▇▇▇▇▇▇▇ Parks, a letter, dated the First Closing Date or ~~supplement thereto~~the Second Closing Date, ~~including any documents filed under~~ as applicable, which shall confirm, on the ~~Exchange Act and deemed to be incorporated by reference~~ basis of a review in accordance with the procedures set forth in the ~~Registration Statement~~Original Letter, ~~and such documents contain all statements~~ that nothing has come to their attention during the period from the date of ~~material fact~~ the Original Letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the First Closing Date or the Second Closing Date, as applicable, which would require any change in the Original Letter if it were required to be ~~stated therein~~dated and delivered at the First Closing Date, or the Second Closing Date, as applicable. There shall not have been any change or decrease specified in the letters referred to in this paragraph which makes it impractical or inadvisable in the judgment of the Representative to proceed with the public offering or purchase of the Shares as contemplated hereby. (j) Prior to the time the Pricing Agreement is executed, there shall be delivered to you a lock-up letter substantially in the form of Exhibit E hereto from each of the Company’s executive officers, directors and do stockholders listed on Schedule 1 hereto. All such opinions, certificates, letters and documents shall be in compliance with the provisions hereof only if they are satisfactory to the Representative and to Winston & ▇▇▇▇▇▇ LLP, counsel for the Underwriters, which approval shall not ~~include~~ be unreasonably withheld. The Company shall furnish you with such manually signed or conformed copies of such opinions, certificates, letters and documents as you request. If any ~~untrue statement of a material fact or omit~~ condition to ~~state any material fact required~~ the Underwriters’ obligations hereunder to be ~~stated therein~~ satisfied prior to or ~~necessary~~ at the First Closing Date is not so satisfied, this Agreement at your election will terminate upon notification to ~~make~~ the ~~statements therein not misleading~~Company without liability on the part of any Underwriter or the Company, ~~and since~~ except for the ~~date on which the Registration Statement was initially filed, no event has occurred that was required~~ expenses to be ~~set forth in an amended~~ paid or ~~supplemented prospectus or in an amendment~~ reimbursed by the Company pursuant to Sections 6 and 8 hereof and except to the ~~Registration Statement that has not been so set fo~~extent provided in Section 10 hereof.

Appears in 1 contract

Sources: Underwriting Agreement (Deer Consumer Products, Inc.)

Appears in 1 contract

Sources: Underwriting Agreement (Nissan Auto Receivables Corp /De)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Firm ADSs on the First Closing Date and the Option Securities to be purchased on each Option Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Shareholders herein ~~set forth~~ (as ~~of the date hereof and as of each~~ though made on such Closing Date), to the accuracy of the statements of Company officers, each Selling Shareholder, as the ~~Company's officers~~ case maybe, and the Depositary made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company and the Selling Shareholders of ~~its~~ their obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Representatives shall have ~~been declared effective by~~ received letters, dated, respectively, the ~~Commission~~ date hereof and at each Closing, of Deloitte Touche Tohmatsu CPA Ltd., confirming that they are registered public accounting firm and independent public accountants within the meaning of the Securities Laws and substantially in the form attached as Annex C hereto; provided in any letter dated a Closing Date, the specified date referred to in Annex C shall be a date no more than three days prior to such Closing Date. (b) If the Effective Time of the Additional Registration Statement, if any, is not prior to the execution and delivery of this Agreement, such Effective Time shall have occurred not later than ~~5:30 p.m.~~10:00 P.M., ~~Washington, D.C.~~ New York time, on the date of this ~~Agreement~~Agreement or, if earlier, the time the Final Prospectus is finalized and distributed to any Underwriter, or shall have occurred at such later ~~time and~~ date as shall have been consented to by the Representatives~~, which consent~~ . The Final Prospectus shall ~~be deemed to~~ have been ~~given if~~ filed with the Commission in accordance with the Rules and Regulations and Section 4(a) of this Agreement. The ADS Registration Statement shall have been declared effective not later than 10:00 P.M., New York time, on ~~or before~~ the date ~~and time requested in the acceleration request submitted on behalf~~ of ~~the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act~~ this Agreement or such later date as shall have been ~~timely made;~~ consented to by the Representatives. Prior to such Closing Date, no stop order suspending the effectiveness of a Registration Statement or the ADS Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Company or the Representatives, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred (i) any ~~change or development involving~~change, or ~~which could be reasonably expected to involve~~any development or event involving a prospective change, ~~a Material Adverse Effect, whether or not arising from transactions~~ in the ~~ordinary course~~ condition (financial or otherwise), results of operations, business, ~~and~~ properties or prospects or of the Company, the Subsidiaries and the Affiliated Entity taken as a whole which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to market the Offered ADSs; (ii) any downgrading in the rating of any debt securities of the Company ~~shall not have sustained~~ by any ~~loss~~ “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g)), or ~~interference from~~ any ~~labor dispute~~public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, ~~strike~~and no implication of a possible downgrading, ~~fire~~of such rating); (iii) a change in U.S., ~~flood~~the PRC, ~~windstorm~~the British Virgin Islands, ~~accident~~ the United Kingdom or international financial, political or economic conditions or currency exchange rates, exchange controls, or taxation, including any transfer taxes, duties, or withholding obligations the effect of which is such as to make it, in the judgment of the Representatives, impractical to market or to enforce contracts for the sale of the Offered ADSs, whether in the primary market or in respect of dealings in the secondary market; (iv) any suspension or material limitation of trading in securities generally on the New York Stock Exchange or the London Stock Exchange (including the Alternative Investment Market of the London Stock Exchange), or any setting of minimum prices for trading on such exchange; (v) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. Federal, New York, PRC, the British Virgin Islands or the United Kingdom authorities; (vii) any major disruption of settlements of securities, payment or clearance services in the United States or the United Kingdom; (viii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, the British Virgin Islands, the United Kingdom or the PRC, any declaration of war by the U.S. Congress, the PRC, the United Kingdom or any other national or international calamity ~~(whether~~ or ~~not insured) or from any court or governmental action~~emergency if, ~~order or decree having a Material Adverse Effect~~in the judgment of the Representatives, the effect of ~~which on the Company, in~~ any such ~~case described in clause (i)~~ attack, outbreak, escalation, act, declaration, calamity or ~~(ii) above,~~ emergency is ~~in the reasonable and good faith opinion of the Representatives so material and adverse~~ such as to make it ~~impracticable~~ impractical or inadvisable to ~~proceed with~~ market the ~~public offering~~ Offered ADSs or to enforce contracts for the ~~delivery~~ sale of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleadingOffered ADSs. (d) The Representatives shall have received ~~opinions~~ an opinion, dated such Closing Date, of ~~Foley & Lardner, special couns~~▇▇▇▇▇▇ & ▇▇r ▇▇▇▇▇ LLP, United States counsel for the ~~Company (as~~ Company, addressed to the ~~matters set forth below~~ Underwriters, substantially in ~~subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and~~ the ~~Vice President, General Counsel and Secretary of the Company (as to the matters~~ form set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing DateAnnex D hereto. (e) The Representatives shall have received an opinion, dated such Closing Date, of Boss & Young, PRC counsel for the Company, addressed to the Underwriters, substantially in the form set forth in Annex E hereto. (f) The Representatives shall have received an opinion dated such Closing Date, of ~~Michael Best~~ ▇▇▇▇▇▇ Westwood & ~~Friedrich LLP~~Reigels, British Virgin Islands counsel for the Company, addressed to the Underwriters, substantially in the form set forth in Annex F hereto. (g) The Representatives shall have received an opinion dated such Closing Date, of Pinsent Masons, United Kingdom counsel for the Company, addressed to the Underwriters, substantially in the form set forth in Annex G hereto. (h) The Representatives shall have received the opinion dated such Closing date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ~~▇▇▇~~ LLP, United States counsel for the Selling Shareholders, addressed to the Underwriters, substantially in the form set forth in Annex H hereto. (i) The Representatives shall have received an opinion dated such Closing date, of ▇▇▇▇▇▇ Westwood & Reigels, British Virgin Islands counsel for certain Selling Shareholders, addressed to the Underwriters, in the form and substance reasonably satisfactory to the Representations and as set forth in Annex I hereto. (j) The Underwriters shall have received an opinion, dated such Closing Date, from ▇▇▇~~ters~~▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Depositary, addressed to the Underwriters, substantially in the form set forth in Annex J hereto. (k) The Representatives shall have received from Shearman & Sterling LLP, United States counsel for the Underwriters, such opinion or opinions, dated ~~the First Closing Date or the Second~~ such Closing Date, as addressed to the ~~case may be~~Underwriters, with respect to ~~the sale of the Shares hereunder, the Registration Statement and other related~~ such matters as the Representatives may ~~reasonably~~ require, and the Selling Shareholders and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, Shearman & Sterling LLP may rely as to the incorporation of the Company and all other matters governed by British Virgin Islands laws upon the opinion of ▇▇▇▇▇▇ Westwood & Riegels and as to all matters governed by the laws of the PRC upon the opinions of Boss & Young referred to above and the opinions of Haiwen & Partners referred to below. (l) The Representatives shall have ~~exhibited~~ received from Haiwen & Partners, PRC counsel to ~~them~~ the Underwriters, such ~~papers~~ opinion or opinions, dated such Closing Date, with respect to such matters as the Representatives may require, and ~~records as~~ the Selling Shareholders and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. (fm) The Depositary shall have furnished or caused to be furnished to the Underwriters a certificate satisfactory to the Representatives of one of its authorized officers with respect to the deposit with it of the Shares represented by the ADSs against issuance of the ADRs evidencing the ADSs, the execution, issuance, countersignature and delivery of the ADRs evidencing the ADSs pursuant to the Deposit Agreement and such other matters related thereto as the Representatives may reasonably request. (n) The Company and the Depositary shall have executed and delivered the Deposit Agreement and the Deposit Agreement shall be in full force and effect and the Company and the Depositary shall have taken all action necessary to permit the deposit of the Shares and the issuance of the ADSs in accordance with the Deposit Agreement. (o) The Representatives shall have received ~~on each~~ a certificate, dated such Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the ~~Company,~~ Chief Executive officer and the Chief Financial Officer of the Company in ~~their respective capacities as such, to~~ which such officers shall state that: the ~~effect that: (i) The~~ representations and warranties of the Company ~~set forth~~ in ~~Section 2 hereof~~ this Agreement are true and ~~correct as of the date of this Agreement and as of the date of such certificate, and~~ correct; the Company has complied ~~in all material respects~~ with all ~~the~~ agreements and satisfied all ~~the~~ conditions on its part to be performed or satisfied ~~by it~~ hereunder at or prior to ~~the date of~~ such ~~certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto~~Closing Date; no stop order suspending the effectiveness of any Registration Statement or the ADS Registration Statement has been ~~issued;~~ issued and ~~to the knowledge of the respective signatories,~~ no proceedings for that purpose have been ~~initiated or~~ instituted or, to the best of their knowledge and after reasonable investigation, are ~~pending under~~ contemplated by the ~~Act or under~~ Commission, the ~~Blue Sky Laws~~ Additional Registration Statement (if any) satisfying the requirements of ~~any jurisdiction;~~ subparagraphs (~~iii~~1) ~~Each~~ and (3) of Rule 462(b) was timely filed pursuant to Rule 462(b), including payment of the ~~respective signatories~~ applicable filing fee in accordance with Rule 111(a) or (b) of Regulation S-T of the Commission; and, subsequent to the date of the most recent financial statements in the General Disclosure Package, there has ~~examined~~ been no material adverse change, nor any development or event involving a prospective material adverse change, in the ~~Registration Statement~~ condition (financial or otherwise), results of operations, business, properties or prospects of the Company, the Subsidiaries and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of Affiliated Entity taken as a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be whole except as set forth in ~~an amended~~ the General Disclosure Package or ~~supplemented prospectus~~ as described in such certificate. (p) The Representatives shall have received letters, dated, respectively, the date hereof and at each Closing, of the Chief Financial Officer of the Company substantially in the form attached as Annex K hereto; provided in any letter dated a Closing Date, the specified date referred to in Annex K shall be a date no more than three days prior to such Closing Date. (q) On or ~~in an amendment~~ prior to the ~~Registration Statement~~ date of this Agreement, the Representatives shall have received lock-up letters from each of the directors and executive officers of the Company and the existing beneficial owners of the Shares (other than the Shares placed in connection with the Company’s admission to AIM in August 2006), in each case substantially in the form attached hereto as Annex B-II. (r) The Representatives shall have received a certificate, dated such Closing Date, of an authorized representative of each Selling Shareholder in which such authorized representative shall state that: the representations and warranties of such Selling Shareholder in this Agreement are true and correct; and the Selling Shareholders have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such Closing Date. (s) On the date hereof, the Selling Shareholder shall have furnished for review by the Representatives executed copies of the Power of Attorney and Custody Agreement. (t) On or prior to the First Closing Date, the Representatives shall have received a letter of the Custodian stating that ~~has not~~ they will deliver to each Selling Shareholder a United States Treasury Department Form 1099 (or other applicable form or statement specified by the United States Treasury Department regulations in lieu thereof) on before January 31, 2009. (u) To avoid a 28% backup withholding tax each Selling Shareholder will deliver to the Representatives a properly completed and executed United States Treasury Department Form W-9, W-8BEN (or other applicable form or statement specified by Treasury Department regulations in lieu thereof to establish an exemption from backup withholding). (v) The ADSs shall have been ~~so set fo~~listed and admitted and authorized for trading on The New York Stock Exchange. (w) The Offered Shares represented by the Offered ADSs shall have been approved by AIM for admission for trading on AIM. (x) On or prior to the First Closing Date, the Offered ADSs shall be eligible for clearance and settlement through the facilities of DTC. The Selling Shareholders and the Company will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. The Representatives may in their sole discretion waive, on behalf of the Underwriters, compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of an Option Closing Date or otherwise.

Appears in 1 contract

Sources: Underwriting Agreement (ReneSola LTD)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Certificates will be subject to the accuracy of the representations and warranties on the part of KBUSA and the ~~Company herein set forth as of the date hereof and as of each Closing Date~~Depositor herein, to the accuracy of the written statements of officers of KBUSA and the ~~Company's officers~~ Depositor made pursuant to the provisions ~~hereof~~of this Section, to the performance ~~in all material respects~~ by KBUSA and the ~~Company~~ Depositor of ~~its~~ their obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) ~~The Registration Statement~~ If the Effective Time is not prior to the execution and delivery of this Agreement, the Effective Time shall have ~~been declared effective by the Commission~~ occurred not later than ~~5:30~~ 6:00 p.m., ~~Washington, D.C.~~ New York City time, on the date of this ~~Agreement,~~ Agreement or such later time ~~and~~ or date as shall have been consented to by the ~~Representatives~~Representative. (b) If the Effective Time is prior to the execution and delivery of this Agreement, ~~which consent shall be deemed to have been given if~~ the ~~Registration Statement~~ Prospectus and any supplements thereto shall have been ~~declared effective on or before~~ filed with the ~~date~~ Commission in accordance with the Rules and ~~time requested in~~ Regulations and Section 5(a) hereof. Prior to the ~~acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made;~~ Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Seller or the Representative, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) The Representative shall have received a letter, dated on or prior to the Closing Date of Ernst & Young LLP on behalf of KBUSA confirming that such accountants are independent public accountants within the meaning of the Act and the applicable published Rules and Regulations thereunder, and substantially in the form of the drafts to which the Representative has previously agreed and otherwise in form and substance reasonably satisfactory to the Representative and its counsel. (d) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred (i) any ~~change or development involving~~change, or ~~which could be reasonably expected to involve~~any development involving a prospective change, ~~a Material Adverse Effect~~in or affecting particularly the business or properties of the Trust, ~~whether~~ KBUSA, the Put Option Provider, KeyCorp or ~~not arising from transactions~~ the Securities Insurer which, in the ~~ordinary course~~ judgment of ~~business~~the Representative, ~~and~~ materially impairs the investment quality of the Notes or makes it impractical or inadvisable to market the Notes; (ii) any downgrading in the ~~Company shall not have sustained~~ rating of any ~~loss~~ debt securities of KBUSA, the Put Option Provider, KeyCorp or ~~interference from~~ the Securities Insurer by any ~~labor dispute~~"nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), ~~strike~~or any public announcement that any such organization has under surveillance or review its rating of any debt securities of KBUSA, ~~fire~~the Put Option Provider, ~~flood~~the Cap Counterparty, ~~windstorm~~KeyCorp or the Securities Insurer (other than an announcement with positive implications of a possible upgrading, ~~accident~~ and no implication of a possible downgrading, of such rating); (iii) any suspension or ~~other calamity~~ limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange; (~~whether~~ iv) any suspension of trading of any securities of KBUSA, the Put Option Provider or ~~not insured~~KeyCorp on any exchange or in the over-the-counter market; (v) any banking moratorium declared by Federal or ~~from~~ New York authorities; or (vi) any ~~court~~ outbreak or ~~governmental action~~escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, ~~order or decree having a Material Adverse Effect,~~ if the effect of ~~which on the Company, in~~ any such ~~case described~~ event specified in this clause (ivi) ~~or (ii) above, is~~ in the ~~reasonable and good faith opinion~~ judgment of the ~~Representatives so material and adverse as to make~~ Representative makes it impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Shares~~ Notes on the terms and in the manner contemplated in the ~~Registration Statement and the~~ Prospectus. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives shall have received opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The ~~Representatives~~ Representative shall have received an opinion of ~~Michael Best & Friedrich LLP~~▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., Associate General Counsel and Senior Vice President of KBNA, as counsel for (i) KBUSA, as the Seller, the Master Servicer, the Swap Counterparty, the Cap Provider, the Cap Counterparty and the Administrator and (ii) the Depositor, dated the Closing Date, in the form attached hereto as Exhibit A, or as is otherwise satisfactory in form and substance to the Representative and its counsel. (f) The Representative shall have received one or more opinions of ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP, counsel to the Depositor and the Seller, dated the Closing Date, in the form attached hereto as Exhibit B, or as is otherwise satisfactory in form and substance to the Representative and its counsel, regarding certain true sale, bankruptcy, insolvency and perfection of security interest matters regarding the Seller, the Depositor and the Trust. (g) The Representative shall have received an opinion of [▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as counsel to Key Bank National Association, as the Put Option Provider], dated the Closing Date, in the form attached hereto as Exhibit D, or as is otherwise satisfactory in form and substance to the Representative and its counsel. (h) The Representative shall have received an opinion of [▇▇▇▇▇▇▇▇~~ters~~▇▇▇ & ▇▇▇▇▇▇▇▇ LLP], counsel to KBUSA and the Depositor, dated the ~~First~~ Closing Date and satisfactory in form and substance to the Representative and its counsel, to the effect that the statements in the Prospectus under the headings "Summary of Terms -- Tax Status" and "Pennsylvania State Tax Consequences -- Pennsylvania Income and Franchise Tax Consequences with Respect to the Notes" accurately describe the material Pennsylvania tax consequences to holders of the Certificates. (i) The Representative shall have received an opinion addressed to the several Underwriters of ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP, in its capacity as Federal tax and ERISA counsel for the Trust, to the effect that the statements in the Prospectus under the headings "Summary of Terms -- Tax Status" and "Federal Tax Consequences for Trusts in which all Certificates are Retained by the Seller" accurately describe the material Federal income tax consequences to holders of the Notes, and the statements in the Prospectus under the headings "Summary of Terms -- ERISA Considerations" and "ERISA Considerations" to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, have been prepared or reviewed by such counsel and accurately describe the ~~Second~~ material consequences to holders of the Certificates under ERISA. ▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP, in its capacity as special counsel to the Trust, shall have delivered an opinion with respect to the characterization of the transfer of the Initial Financed Student Loans. (j) The Representative shall have received an opinion addressed to the several Underwriters of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, in its capacity as special counsel to the several Underwriters, dated the Closing Date~~, as the case may be~~, with respect to the ~~sale~~ validity of the ~~Shares hereunder, the Registration Statement~~ Certificates and such other related matters as the ~~Representatives may~~ Representative shall reasonably ~~require,~~ require and each of KBUSA and the ~~Company~~ Depositor shall have furnished or caused to be furnished to such counsel such documents ~~and shall have exhibited to them such papers and records~~ as ~~such counsel~~ they may reasonably request for the purpose of enabling them to pass upon such matters. (fk) The ~~Representatives~~ Representative shall have received ~~on each~~ an opinion of [ ], special student loan counsel to the Representative and, in the case of clause (iii) below, special student loan counsel to the Eligible Lender Trustee, dated the Closing Date, ~~a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer,~~ satisfactory in form and ~~W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of~~ substance to the ~~Company, in their respective capacities as such~~Representative, to the effect that: (i) ~~The representations~~ the agreements implementing the Programs, (including the Coordination Agreements) and ~~warranties of~~ the ~~Company set forth~~ Relevant Documents (as defined in ~~Section 2 hereof are true and correct as of the date of this Agreement and as of the date of~~ such ~~certificate~~opinion), and the ~~Company has complied~~ transactions contemplated by the Relevant Documents, conform in all material respects to the applicable requirements of the Higher Education Act, and that, upon the due authorization, execution and delivery of the Relevant Documents and the consummation of such transactions, the Financed Federal Loans, legal title to which will be held by the Eligible Lender Trustee on behalf of the Trust, will qualify, subject to compliance with all ~~the agreements~~ applicable origination and ~~satisfied~~ servicing requirements, for all ~~the conditions to be performed or satisfied by it at or prior to the date of such certificate~~applicable federal assistance payments, including federal reinsurance and federal interest subsidies and special allowance payments; (ii) ~~The Commission~~ such counsel has ~~not issued an order preventing or suspending~~ examined the ~~use of~~ Prospectus, and nothing has come to such counsel's attention that would lead such counsel to believe that, solely with respect to the ~~Prospectus or any Preliminary~~ Higher Education Act and the student loan business, the Prospectus or any amendment or supplement ~~thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge~~ thereto as of the respective ~~signatories~~dates thereof or on the Closing Date contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein not misleading; and (iii) the Eligible Lender Trustee is an "eligible lender" as such term is defined in Section 435(d) of the Higher Education Act for purposes of holding legal title to the Financed Federal Loans. [SUB-SERVICERS AND GUARANTORS TO BE UPDATED IN EACH AGREEMENT] (l) [The Representative shall have received an opinion of counsel to [PHEAA], ~~no proceedings for that purpose have~~ dated the Closing Date and satisfactory in form and substance to the Representative and its counsel, to the effect that: (i) [PHEAA] has been ~~initiated or are pending~~ duly organized and is validly existing as an agency of the Commonwealth of Pennsylvania in good standing under the ~~Act or~~ laws thereof with full power and authority (corporate and other) to own its properties and conduct its business, as presently conducted by it, and to enter into and perform its obligations under the ~~Blue Sky Laws~~ [PHEAA] Sub-Servicing Agreements and the Guarantee Agreement (and the agreements with the Department under Section 428 of the Higher Education Act to the extent relevant to [PHEAA]'s obligations under such Guarantee Agreement) to which it is a party, and had at all relevant times, and now has, the power, authority and legal right to service the Financed Student Loans it is servicing, to guarantee the Financed Federal Loans covered by such Guarantee Agreement and to receive, subject to compliance with all applicable conditions, restrictions and limitations of the Higher Education Act, reinsurance payments from the Department with respect to claims paid by it on such Financed Federal Loans. (ii) [PHEAA] is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals in each jurisdiction in which failure to qualify or to obtain such license or approval would render any ~~jurisdiction;~~Financed Student Loan or [PHEAA]'s obligation under its Guarantee Agreement unenforceable by or on behalf of the Trust. (iii) Each of the ~~respective signatories has examined the Registration Statement~~ [PHEAA] Sub-Servicing Agreements and the ~~Prospectus~~Guarantee Agreement (and the agreements with the Department under Section 428 of the Higher Education Act to the extent relevant to [PHEAA]'s obligations under such Guarantee Agreement) to which [PHEAA] is a party has been duly authorized, executed and delivered by [PHEAA] and is the legal, valid and binding obligation of [PHEAA] enforceable against [PHEAA] in accordance with its terms, notwithstanding the existence of any doctrine of sovereign immunity except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights, and to the termination powers granted the secretary of the Department under Section 4042 of the Student Loan Reform Act of 1993, amending Section 422 of the Higher Education Act, and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any ~~amendment~~ proceeding therefor may be brought. (iv) Neither the execution and delivery by [PHEAA] of the [PHEAA] Sub-Servicing Agreements or ~~supplement thereto~~the Guarantee Agreement to which it is a party, ~~including~~ nor the consummation by [PHEAA] of the transactions contemplated therein nor the fulfillment of the terms thereof by [PHEAA] will conflict with, result in a breach, violation or acceleration of, or constitute a default under, any ~~documents filed~~ term or provision of [PHEAA]'s authorizing legislation or by-laws of [PHEAA] or of any indenture or other agreement or instrument to which [PHEAA] is a party or by which [PHEAA] is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to [PHEAA] of any court, regulatory body, administrative agency or governmental body having jurisdiction over [PHEAA]. (v) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened against [PHEAA] before or by any governmental authority that might materially and adversely affect the performance by [PHEAA] of its obligations under, or the validity or enforceability of, the [PHEAA] Sub-Servicing Agreements or the Guarantee Agreement (or the agreements with the Department under Section 428 of the Higher Education Act to the extent relevant to [PHEAA]'s obligations under such Guarantee Agreement) to which it is a party. (vi) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of [PHEAA] contained in the [PHEAA] Sub-Servicing Agreements are other than as stated therein.] (m) [The Representative shall have received an opinion of counsel to Great Lakes in its capacity as a Sub-Servicer, dated the Closing Date and satisfactory in form and substance to the Representative and its counsel, to the effect that: (i) Great Lakes has been duly organized and is validly existing as a Wisconsin corporation in good standing under the ~~Exchange Act~~ laws thereof with full power and ~~deemed~~ authority (corporate and other) to own its properties and conduct its business, as presently conducted by it, and to enter into and perform its obligations under the Great Lakes Sub-Servicing Agreement, and had at all relevant times, and now has, the power, authority and legal right to service the Financed Student Loans it is servicing. (ii) The Great Lakes Sub-Servicing Agreement has been duly authorized, executed and delivered by Great Lakes and is the legal, valid and binding obligation of Great Lakes enforceable against Great Lakes in accordance with its terms, except (x) the enforceability thereof may be ~~incorporated~~ subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (iii) Neither the execution and delivery by ~~reference~~ Great Lakes of the Great Lakes Sub-Servicing Agreement, nor the consummation by Great Lakes of the transactions contemplated therein nor the fulfillment of the terms thereof by Great Lakes will conflict with, result in a breach, violation or acceleration of, or constitute a default under, any term or provision of the certificate of incorporation or by-laws of Great Lakes or of any indenture or other agreement or instrument to which Great Lakes is a party or by which Great Lakes is bound, or result in a violation of or contravene the terms of any statute, order or regulation applicable to Great Lakes of any court, regulatory body, administrative agency or governmental body having jurisdiction over Great Lakes. (iv) There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge after due inquiry, threatened against Great Lakes before or by any governmental authority that might materially and adversely affect the performance by Great Lakes of its obligations under, or the validity or enforceability of, the Great Lakes Sub-Servicing Agreement. (v) Nothing has come to such counsel's attention that would lead such counsel to believe that the representations and warranties of Great Lakes contained in the ~~Registration Statement, and such documents contain all statements of material fact required to be~~ Great Lakes Sub-Servicing Agreement are other than as stated therein~~, and do not include any untrue statement~~ .] (n) [The Representative shall have received an opinion of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment counsel to the ~~Registration Statement that~~ Massachusetts Higher Education Assistance Corporation, now doing business as American Student Assistance, a Massachusetts non-profit corporation ("ASA"), dated the Closing Date and satisfactory in form and substance to the Representative and its counsel, to the effect that: (i) ASA has ~~not~~ been ~~so set fo~~duly incorporated and is validly existing as a non-profit corporation in good standing under the laws of the Commonwealth of Massachusetts with full power and authority (corporate and other) to own its properties and conduct its busi

Appears in 1 contract

Sources: Certificate Underwriting Agreement (Key Bank Usa National Association)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Certificates will be subject to the accuracy of the representations and warranties on the part of the ~~Company~~ Seller and the Servicer herein ~~set forth as of~~ on the date hereof and ~~as of each~~ at the Closing Date, to the accuracy of the statements of officers of the ~~Company's officers~~ Seller and the Servicer made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Seller and the Servicer of ~~its~~ their respective obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) ~~The~~ At the time this Agreement is executed and delivered by the Seller and at the Closing Date, [ ] shall have furnished to the Representative letters dated respectively as of the date of this Agreement and as of the Closing Date substantially in the forms of the drafts to which the Representative previously agreed. (b) If the Effective Time of the Initial Registration Statement is not prior to the execution and delivery of this Agreement, such Effective Time shall have ~~been declared effective by the Commission~~ occurred not later than ~~5:30~~ [10:00 p.m., ~~Washington, D.C.~~ New York time, ,] on the date of this ~~Agreement,~~ Agreement or such later ~~time and~~ date as shall have been consented to by the ~~Representatives, which consent shall be deemed to have been given if~~ Representative. If the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement, the Prospectus shall have been ~~declared effective~~ filed with the Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement. If the Effective Time of the Additional Registration Statement (if any) is not prior to the execution and delivery of this Agreement, such Effective Time shall have occurred not later than [10:00 p.m., New York time,] on ~~or before~~ the date of this Agreement or, if earlier, the time the Prospectus is printed and ~~time requested in the acceleration request submitted on behalf of the Representatives pursuant~~ distributed to ~~Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act~~ any Underwriter, or shall have occurred at such later date as shall have been ~~timely made;~~ consented to by the Representative. Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Seller, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faith. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the ProspectusCommission. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives Underwriters shall have received ~~opinions of Foley & Lardner~~an officers' certificate, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the ~~First Closing Date or the Second~~ Closing Date, as signed by the ~~case may be~~Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of the Seller representing and warranting that, to the ~~effect that~~best of such officers' knowledge after reasonable investigation, as of the Closing Date: (i) The ~~Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power~~ representations and ~~authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock~~ warranties of the ~~Company consists of 60,000,000 shares of Common Stock~~Seller in this Agreement are true and correct in all material respects, ~~par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share,~~ that the Seller has complied with all agreements and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform satisfied in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the ~~requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent~~Closing Date, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, that no stop order suspending the effectiveness of ~~the~~ any Registration Statement has been issued and no proceedings for that purpose have been instituted or or, to the best of their knowledge, are ~~threatened~~ contemplated by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied;. (~~vii~~ii) ~~To such counsel's knowledge~~There has been no material adverse change, ~~there are no pending or threatened legal or governmental proceedings that are required to be described in~~ since the ~~Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge,~~ respective dates as of which information is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth given in the Prospectus (except as otherwise set forth therein and exclusive of amendments or supplements after the date hereof), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of the Seller or any of its affiliates (as such term is defined in Rule 501(b) under the ~~heading~~ Act) (each, an "~~Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A~~Affiliate"), filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the ~~consummation~~ ability of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument such entity to perform its obligations under each Basic Document to which ~~the Company or the Significant Subsidiary~~ it is a party or by which it may be bound. Except as otherwise indicated by the ~~Company~~ context, all references to the term "material" in this Agreement that refer to the Seller or ~~the Significant Subsidiary~~its Affiliates, or any of ~~their respective owned or leased property is bound~~them, shall be interpreted in proportion to the business of Nissan North America, Inc. ("NNA") and its consolidated subsidiaries, which include the Seller and the Servicer and the parent company of NNA, Nissan Motor Co., Ltd. (the "Nissan Group"), as a whole, and ~~which is filed or incorporated by reference as an exhibit~~ not in proportion to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality business of the ~~United States having jurisdiction over the Company~~ Seller or ~~the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws);~~its Affiliate(s) individually. (xid) ~~To such counsel's knowledge~~The Underwriters shall have received an officers' certificate, ~~there are no holders of Common Stock or other securities~~ dated the Closing Date, signed by the Chairman of the ~~Company~~Board, the President or ~~securities that are convertible~~ any Vice President and by a principal financial or ~~exchangeable into Common Stock or other securities~~ accounting officer of the ~~Company~~Servicer representing and warranting that, ~~that have rights~~ to the ~~registration~~ best of such ~~securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge~~officers' knowledge after reasonable investigation, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the ~~Company set forth~~ Servicer in ~~Section 2 hereof~~ this Agreement are true and correct ~~as of the date of this Agreement and as of the date of such certificate, and the Company has complied~~ in all material ~~respects~~ respects, that the Servicer has complied with all ~~the~~ agreements and ~~satisfied~~ satisfied, in all ~~the~~ material respects, all conditions on its part to be performed or satisfied ~~by it~~ hereunder at or prior to the ~~date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto;~~ Closing Date, that no stop order suspending the effectiveness of ~~the~~ any Registration Statement has been ~~issued;~~ issued and ~~to the knowledge of the respective signatories,~~ no proceedings for that purpose have been ~~initiated~~ instituted or, to the best of their knowledge, are contemplated by the Commission. (ii) There has been no material adverse change, since the respective dates as of which information is given in the Prospectus (except as otherwise set forth therein and exclusive of amendments or ~~are pending~~ supplements after the date hereof), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of the Servicer or any of its Affiliates, or the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the term "material" in this Agreement that refer to the Servicer or its Affiliates, or any of them, shall be interpreted in proportion to the business of NNA and its consolidated subsidiaries and its parent company, which include the Nissan Group, as a whole, and not in proportion to the business of the Servicer or its Affiliate(s) individually. (e) Subsequent to the execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Seller, Nissan Motor Co. Ltd., NNA or the Servicer which, in the judgment of the Representative, materially impairs the investment quality of the Certificates or makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Certificates; (ii) any downgrading in the rating of any debt securities of NNA or any of its direct or indirect subsidiaries by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any such debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange; (iv) any material disruption in commercial banking, securities entitlement or clearance services in the United States; (v) any banking moratorium declared by federal or New York authorities; or (vi) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Certificates. (f) [▇▇▇ ▇▇▇▇▇,] Esq., General Counsel of the Seller, or other counsel satisfactory to the Representative in its reasonable judgment, shall have furnished to the Representative such counsel's written opinion, dated the Closing Date, in substantially the form set forth below, with such changes therein as counsel for the Underwriters shall reasonably agree: (i) The Seller 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, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or the ownership of its property requires such qualification, except where the failure to be in good standing would not have a material adverse effect on the Seller's ability to perform its obligations under the Basic Documents. (ii) The Servicer has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of California with corporate power and authority to own its properties and conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or the ownership of its property requires such qualification, except where the failure to be in good standing would not have a material adverse effect on the Servicer's ability to perform its obligations under the Basic Documents. (iii) The Basic Documents have been duly authorized, executed and delivered by each of the Seller and the Servicer, as applicable, and each of the Seller and the Servicer has the corporate power and authority to enter into and perform its respective obligations under the Basic Documents. (iv) The execution, delivery and performance of the Basic Documents by the Seller and the Servicer will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the respective properties or assets of the Seller or the Servicer, pursuant to the terms of the Certificates or the charter or bylaws of the Seller or the Servicer, any statute, any rule, regulation or order of any governmental agency or body or any court having jurisdiction over the Seller or the Servicer or any of their respective properties or any material agreement or instrument to which the Seller or the Servicer is a party or by which either the Seller or the Servicer or any of their respective properties is bound. (v) No authorization, approval or consent of any court or governmental agency or authority is necessary in connection with the execution, delivery and performance by the Seller or the Servicer of the Basic Documents to which it is a party, except such as may be required under the Act or ~~under~~ the ~~Blue Sky Laws~~ Rules and Regulations and state securities laws, and except for such authorizations, approvals or consents (specified in such opinion) as are in full force and effect as of ~~any jurisdiction;~~the Effective Date and the Closing Date. (~~iii~~vi) ~~Each~~ Nothing has come to such counsel's attention that would cause it to believe that as of the ~~respective signatories has examined~~ Effective Date and at the Closing Date the Registration Statement and the ~~Prospectus~~Prospectus (other than the financial statements and the other accounting information contained therein or omitted therefrom, ~~and any amendment~~ as to which such counsel need express no belief) contained or ~~supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents~~ contain ~~all statements of material fact required to be stated therein, and do not include~~ any untrue statement of a material fact or omitted or omit to state any material fact required to be stated therein or necessary to make the statements ~~therein~~ therein, in the light of the circumstances under which they were made, not misleading, or that the descriptions therein of statutes and ~~since~~ governmental proceedings and contracts and other documents are inaccurate and do not fairly present the ~~date on which the Registration Statement was initially filed, no event has occurred that was~~ information required to be ~~set forth in~~ shown therein. (vii) Such counsel does not know of any contract or other document of a character required to be filed as an ~~amended or supplemented prospectus or in an amendment~~ exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which is not filed or described as required. (viii) There are no legal or governmental proceedings pending to which the Seller or the Servicer is a party or of which any property of the Seller or the Servicer is the subject, and no such proceedings are known by such counsel to be threatened or contemplated by governmental authorities or threatened by others, (A) (whether individually or in the aggregate) that are required to be disclosed in the Registration Statement or (B)(1) asserting the invalidity of all or part of any Basic Document, (2) seeking to prevent the issuance of the Certificates, (3) (whether individually or in the aggregate) that would materially and adversely affect the Seller's or the Servicer's obligations under any Basic Document to which it is a party, or (4) (whether individually or in the aggregate) seeking to affect adversely the federal or state income tax attributes of the Certificates. (ix) The Servicer has corporate power and authority to sell and assign the property to be sold and assigned to the Seller pursuant to the Purchase Agreement and has duly authorized such sale and assignment to the Seller by all necessary corporate action. (x) The Seller has corporate power and authority to sell and assign the property to be sold and assigned to and deposited with the Trust and has duly authorized such sale and assignment to the Trust by all necessary corporate action. (xi) The Receivables are "tangible chattel paper" as defined in the Uniform Commercial Code, as in effect in the State of California. (xii) Such counsel is familiar with the Servicer's standard operating procedures relating to the Servicer's acquisition of a perfected first priority security interest in the vehicles financed by the retail installment sale contracts purchased by the Servicer in the ordinary course of the Servicer's business and relating to the sale by the Servicer to the Seller of such contracts and such security interests in the Financed Vehicles in the ordinary course of the Servicer's and the Seller's business. Assuming that the Servicer's standard procedures are followed with respect to the perfection of security interests in the Financed Vehicles (and such counsel has no reason to believe that the Servicer has not or will not continue to follow its standard procedures in connection with the perfection of security interests in the Financed Vehicles), the Servicer has acquired or will acquire a perfected first priority security interest in the Financed Vehicles. (xiii) Each of the Seller and the Servicer has obtained all necessary governmental licenses and governmental approvals under the federal law of the United States and the laws of the State of California to conduct their businesses where they failure to obtain such licenses and approvals would render any material part of the corpus of the Trust enforceable or would materially and adversely affect the ability of either the Seller or the Servicer to perform any of their respective obligations under, or the enforceability of, any of the Basic Documents. (g) O'Melveny & ▇▇▇▇▇ LLP, special counsel to the Seller, shall have furnished to the Representative their written opinion, dated as of the Closing Date, in substantially the form set forth below, with such changes therein as counsel for the Underwriters shall reasonably agree: (i) Each Basic Document to which the Seller or the Servicer is a party has been ~~so set fo~~duly authorized by all necessary corporate action on the part of such Person and has been executed and delivered by such Person. (ii) Assuming the due authorization, execution and delivery thereof by the Trustee, each Basic Document to which the Seller or the Servicer is a party constitutes a legally valid and binding obligation of the Seller or the Servicer, as the case may be, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect, relating to or affecting creditors' rights generally and by the application of general principles of equity, including without limitation concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance, injunctive relief or any other equitable remedy (regardless of whether enforcement is considered in a proceeding at law or in equity). (iii) Assuming the Certificates have bee

Appears in 1 contract

Sources: Underwriting Agreement (Nissan Auto Receivables Corp Ii)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement~~ to purchase and pay for the Firm Common Shares on the First Closing Date and the Optional Common Shares on the Second Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders herein set forth as of the date hereof and as of ~~each~~ the First Closing Date or the Second Closing Date, as the case may be, to the accuracy of the statements of Company officers and the ~~Company's officers~~ Selling Stockholders made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company and the Selling Stockholders of ~~its~~ their respective obligations hereunder, and to the following additional conditions~~, unless waived in writing by the Representatives~~: (a) The Registration Statement shall have ~~been declared~~ become effective ~~by the Commission~~ not later than ~~5:30 p.m.~~5:00 P.M. (or, in the case of a registration statement filed pursuant to Rule 462(b) of the Rules and Regulations relating to the Common Shares, not later than 10 P.M.), Washington, D.C. ~~time~~Time, on the date of this Agreement, or at such later time ~~and date~~ as shall have been consented to by ~~the Representatives, which consent shall be deemed to have been given~~ you; if the ~~Registration Statement~~ filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b) of the Rules and Regulations, the Prospectus shall have been ~~declared effective on or before the date and time requested~~ filed in the ~~acceleration request submitted on behalf~~ manner and within the time period required by Rule 424(b) of the ~~Representatives pursuant~~ Rules and Regulations; and prior to ~~Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made;~~ such Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission~~ and no proceedings for that purpose shall have been instituted or ~~any state securities commission nor~~shall be pending or, to the knowledge of the Company, the Selling Stockholders or you, shall ~~any proceedings for that purpose have been instituted or threatened~~be contemplated by the Commission; and any request of the Commission ~~or any state securities commission~~ for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to ~~the reasonable satisfaction of the Representatives acting in good faith~~your satisfaction. (b) ~~Subsequent to~~ You shall be satisfied that since the ~~execution~~ respective dates as of ~~this Agreement,~~ which information is given in the Registration Statement and Prospectus, (i) there shall not have ~~occurred~~ been any change in the capital stock (other than pursuant to the exercise of outstanding options and warrants disclosed in the Prospectus) of the Company or ~~development involving,~~ any of its subsidiaries or ~~which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions~~ any material change in the indebtedness (other than in the ordinary course of business) of the Company or any of its subsidiaries, ~~and~~ (ii) except as set forth or contemplated by the Registration Statement or the Prospectus, no material verbal or written agreement or other transaction shall have been entered into by the Company ~~shall~~ or any of its subsidiaries, which is not ~~have sustained any~~ in the ordinary course of business (or which could result in a material reduction in the future earnings of the Company and its subsidiaries), (iii) no loss or ~~interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity~~ damage (whether or not insured) to the property of the Company or ~~from~~ any ~~court~~ of its subsidiaries shall have been sustained which materially and adversely affects the condition (financial or otherwise), business, results of operations or prospects of the Company and its subsidiaries, (iv) no legal or governmental action, ~~order~~ suit or ~~decree having a Material Adverse Effect~~proceeding affecting the Company or any of its subsidiaries which is material to the Company and its subsidiaries or which affects or may affect the transactions contemplated by this Agreement shall have been instituted or threatened, ~~the effect of which on the Company, in~~ and (v) there shall not have been any ~~such case described in clause (i) or (ii) above, is~~ material change in the ~~reasonable~~ condition (financial or otherwise), business, management, results of operations or prospects of the Company and ~~good faith opinion~~ its subsidiaries which makes it impractical or inadvisable in the judgment of the Representatives ~~so material and adverse as to make it impracticable or inadvisable~~ to proceed with the public offering or purchase the ~~delivery of the~~ Common Shares ~~on the terms and in the manner~~ as contemplated ~~in the Registration Statement and the Prospectus~~hereby. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives There shall have ~~received opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company (as~~ been furnished to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representativesyou, as ~~the representatives~~ Representatives of the Underwriters, on each Closing Date, in form and substance satisfactory to you, except as otherwise expressly provided below: (i) An opinion of Blank Rome ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Company and the Selling Stockholders, addressed to the Underwriters and dated the First Closing ~~Date~~ Date, or the Second Closing ~~Date~~Date (in the latter case with respect to the Selling Stockholders only), as the case may be, to the effect that: (i1) ~~The~~ Each of the Company and its subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of ~~Delaware~~its jurisdiction of incorporation, ~~with~~ is duly qualified to do business as a foreign corporation and is in good standing in all other jurisdictions where the ownership or leasing of properties or the conduct of its business requires such qualification, except for jurisdictions in which the failure to so qualify would not have a material adverse effect on the Company and its subsidiaries, and has full corporate power and authority to ~~own, lease and operate~~ own its properties and conduct its business as ~~presently conducted and as~~ described in ~~the Prospectus and~~ the Registration Statement; (ii2) The ~~authorized~~ authorized, issued and outstanding capital stock of the Company ~~consists of 60,000,000~~ is as set forth under the caption "Capitalization" in the Prospectus; all necessary and proper corporate proceedings have been taken in order to authorize validly such authorized Common Stock; all outstanding shares of Common ~~Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share,~~ Stock (including the Firm Common Shares and ~~77,000,000 shares of preferred stock, $1.00 par value per share; (iii~~any Optional Common Shares) ~~The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder~~ have been duly ~~authorized~~ and validly issued, are fully paid and ~~nonassessable (except~~nonassessable, have been issued in compliance with federal and state securities laws, were not issued in violation of or subject to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, any preemptive rights or other rights to subscribe for or purchase any ~~shares of capital stock~~ securities and conform to the description thereof contained in the Prospectus; without limiting the foregoing, there are no preemptive or other rights to subscribe for or purchase any of the ~~Company and,~~ Common Shares to ~~such counsel's knowledge, no shares of capital stock of~~ be sold by the Company ~~have been issued in violation of such rights~~hereunder; (iv3) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all All of the issued and outstanding ~~capital stock~~ shares of the ~~Significant Subsidiary~~Company's subsidiaries have been duly and validly authorized and issued, are fully paid and nonassessable and are owned beneficially by the Company free and clear of all liens, encumbrances, equities, claims, security interests, voting trusts or other defects of title whatsoever; (v4) The certificates ~~for~~ evidencing the Common Shares to be delivered hereunder ~~conform~~ are in ~~all material respects to the requirements of the Delaware General Corporation Law~~ due and ~~the rules and regulations of the New York Stock Exchange;~~ proper form under Pennsylvania law, and when duly countersigned by the Company's transfer ~~agent~~agent and registrar, and delivered to ~~the Representatives~~ you or upon ~~the~~ your order ~~of the Representatives~~ against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Common Shares represented thereby will be duly authorized and validly issued, fully paid and ~~nonassessable~~ nonassessable, will not have been issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities and will conform in all respects to the description thereof contained in the Prospectus; (~~except~~5) Except as disclosed in or specifically contemplated by the Prospectus, to the ~~extent applicable~~best of such counsel's knowledge, ~~as otherwise provided in Section 180.0622(2)(b)~~ there are no outstanding options, warrants or other rights calling for the issuance of, and no commitments, plans or arrangements to issue, any shares of capital stock of the ~~Wisconsin Business Corporation Law, as judicially interpreted)~~Company or any security convertible into or exchangeable for capital stock of the Company; (via) The Registration Statement has become effective under the ~~Act~~ Act, and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement or preventing the use of the Prospectus has been issued and no proceedings for that purpose have been instituted or are ~~threatened~~ pending or contemplated by the Commission; ~~the Registration Statement and~~ any required filing of the Prospectus and any supplement thereto pursuant to Rule 424(b) of the Rules and Regulations has been made in the manner and within the time period required by such Rule 424(b); (b) The Registration Statement, the Prospectus and each amendment or supplement ~~thereto, including any document incorporated by reference into the Registration Statement~~ thereto (except for the financial statements and schedules ~~and other statistical or financial data~~ included ~~therein,~~ therein as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the ~~Act;~~ Act and the ~~conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied~~Rules and Regulations; (~~vii~~c) To the best of such counsel's knowledge, there are no franchises, leases, contracts, agreements or documents of a character required to be disclosed in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not disclosed or filed, as required; (d) To the best of such counsel's knowledge, there are no legal or governmental actions, suits or proceedings pending or threatened ~~legal or governmental proceedings that~~ against the Company which are required to be described in the ~~Registration Statement or the~~ Prospectus ~~that~~ which are not ~~so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be~~ described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as ~~an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference~~ required;; and (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix7) The Company has full ~~corporate~~ right, power and authority to enter into this Agreement and ~~perform~~ to sell and deliver the Common Shares to be sold by it to the several Underwriters; this ~~Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have~~ Agreement has been duly and validly authorized ~~by the Company~~ by all necessary corporate action ~~and this Agreement~~ by the Company, has been duly and validly executed and delivered by and on behalf of the Company, and is a ~~legal,~~ valid and binding agreement of the Company enforceable ~~against the Company~~ in accordance with its terms, except ~~that rights to indemnity or contribution hereunder~~ as enforceability may be limited by ~~applicable law and except as to enforceability of this Agreement may be limited by~~ general equitable principles, bankruptcy, insolvency, reorganization, moratorium or other ~~similar~~ laws affecting creditors' rights ~~generally~~generally and except as to those provisions relating to indemnity or contribution for liabilities arising under the Act as to which no opinion need be expressed; and no approval, ~~and by equitable principles limiting the right to specific performance~~ authorization, order, consent, registration, filing, qualification, license or permit of or with any court, regulatory, administrative or other ~~equitable relief~~governmental body is required for the execution and delivery of this Agreement by the Company or the consummation of the transactions contemplated by this Agreement, except such as have been obtained and are in full force and effect under the Act and such as may be required under applicable Blue Sky laws in connection with the purchase and distribution of the Common Shares by the Underwriters and the clearance of such offering with the NASD; (8) The execution and performance of this Agreement and the consummation of the transactions herein contemplated will not conflict with, result in the breach of, or constitute, either by itself or upon notice or the passage of time or both, a default under, any agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or any of its or their property may be bound or affected which is material to the Company and its subsidiaries, or violate any of the provisions of the articles of incorporation or bylaws, or other organizational documents, of the Company or any of its subsidiaries or, so far as is known to such counsel, violate any statute, judgment, decree, order, rule or regulation of any court or governmental body having jurisdiction over the Company or any of its subsidiaries or any of its or their property; (9) Neither the Company nor any subsidiary is in violation of its articles of incorporation or bylaws, or other organizational documents, or to the best of such counsel's knowledge, in breach of or default with respect to any provision of any agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument known to such counsel to which the Company or any such subsidiary is a party or by which it or any of its properties may be bound or affected, except where such default would not materially adversely affect the Company and its subsidiaries; and, to the best of such counsel's knowledge, the Company and its subsidiaries are in compliance with all laws, rules, regulations, judgments, decrees, orders and statutes of any court or jurisdiction to which they are subject, except where noncompliance would not materially adversely affect the Company and its subsidiaries; (10) To the best of such counsel's knowledge, no ~~consent~~holders of securities of the Company have rights which have not been waived to the registration of shares of Common Stock or other securities, because of the filing of the Registration Statement by the Company or the offering contemplated hereby; (11) To the best of such counsel's knowledge, this Agreement and the Stockholders Agreement have been duly authorized, executed and delivered by or on behalf of each of the Selling Stockholders; the Agent has been duly and validly authorized to act as the custodian of the Common Shares to be sold by each such Selling Stockholder; and the performance of this Agreement and the Stockholders Agreement and the consummation of the transactions herein contemplated by the Selling Stockholders will not result in a breach of, or constitute a default under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which any of the Selling Stockholders is a party or by which any of the Selling Stockholders or any of their properties may be bound, or violate any statute, judgment, decree, order, rule or regulation known to such counsel of any court or governmental body having jurisdiction over any of the Selling Stockholders or any of their properties; and to the best of such counsel's knowledge, no approval, ~~authorization or other~~ authorization, order or ~~decree~~ consent of any court, regulatory ~~or governmental~~ body~~, arbitrator~~, administrative agency or other ~~instrumentality of the United States having jurisdiction over the Company,~~ governmental body is required for the execution and delivery of this Agreement or the Stockholders Agreement or the consummation by the Selling Stockholders of the transactions contemplated by this ~~Agreement (~~Agreement, except ~~for compliance with~~ such as have been obtained and are in full force and effect under the ~~Act,~~ Act and such as may be required under the ~~Exchange Act,~~ rules of the NASD and applicable Blue Sky ~~Laws and the clearance of the underwriting arrangements with the NASD)~~laws; (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi12) To the best of such counsel's knowledge, ~~there are no holders~~ the Selling Stockholders have full right, power and authority to enter into this Agreement and the Stockholders Agreement and to sell, transfer and deliver the Common Shares to be sold on such Closing Date by such Selling Stockholders hereunder and good and marketable title to such Common Shares so sold, free and clear of ~~Common Stock~~ all liens, encumbrances, equities, claims, restrictions, security interests, voting trusts, or other ~~securities~~ defects of ~~the Company~~title whatsoever, ~~or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights~~ has been transferred to the ~~registration of~~ Underwriters (whom counsel may assume to be bona fide purchasers) who have purchased such ~~securities under the Act or any Blue Sky Laws;~~Common Shares hereunder; and (~~xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii~~13) To the best of such counsel's knowledge, ~~neither~~ this Agreement and the ~~Company nor~~ Stockholders Agreement are valid and binding agreements of each of the ~~Significant Subsidiary is~~Selling Stockholders in accordance with their terms except as enforceability may be limited by general equitable principles, ~~nor~~ bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally and except with respect to those provisions relating to indemnities or contributions for liabilities under the Act, as to which no opinion need be expressed. (14) No transfer taxes are required to be paid in connection with the ~~giving~~ sale and delivery of ~~notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and~~the Common Shares to the Underwriters hereunder. (~~xiv~~15) The ~~Company is not an "investment company,"~~ Recapitalization (as ~~such term is~~ defined in the ~~Investment~~ Prospectus) has been consummated pursuant to the terms described therein. (16) The agreements necessary to effect the acquisition of MAB have been duly authorized, executed and delivered by each of the parties thereto and constitute the valid, legal and binding agreements of each such party, and the acquisition of all of the capital stock of MAB by the Company ~~Act of 1940~~and the related transactions contemplated thereby have been consummated pursuant to the terms described in the Prospectus. In rendering such opinion, such counsel may rely, as ~~amended~~to matters of local law, on opinions of local counsel, and as to matters of fact, on certificates of the Selling Stockholders and of officers of the Company and of governmental officials, in which case their opinion is to state that they are so doing and that the Underwriters are justified in relying on such opinions or certificates and copies of said opinions or certificates are to be attached to the opinion. Such counsel shall also ~~state~~ include a statement to the effect that ~~they have participated in conferences with officers and other representatives of~~ nothing has come to such counsel's attention that would lead such counsel to believe that either at the ~~Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content~~ effective date of the Registration Statement ~~and~~ or at the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into applicable Closing Date the Registration Statement or the Prospectus, ~~on the basis of the information that was developed in the course of the performance of~~ or any such ~~services~~amendment or supplement, ~~they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained~~ contains any untrue statement of a material fact ~~or omitted~~ or omits to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set fost

Appears in 1 contract

Sources: Underwriting Agreement (Nco Group Inc)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement~~ to purchase and pay for the Firm Common Shares on the First Closing Date and the Optional Common Shares on the Second Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder herein set forth as of the date hereof and as of ~~each~~ the First Closing Date or the Second Closing Date, as the case may be, to the accuracy of the statements of Company officers and the ~~Company's officers~~ Selling Stockholder made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company and the Selling Stockholder of ~~its~~ their respective obligations hereunder, and to the following additional conditions~~, unless waived in writing by the Representatives~~: (a) The Registration Statement shall have ~~been declared~~ become effective ~~by the Commission~~ not later than ~~5:30~~ 5:00 p.m.(or, in the case of a registration statement filed pursuant to Rule 462(b) of the Rules and Regulations relating to the Common Shares, not later than 10:00 p.m.), Washington, D.C. ~~time~~Time, on the date of this Agreement, or at such later time ~~and date~~ as shall have been consented to by ~~the Representatives, which consent shall be deemed to have been given~~ you; if the ~~Registration Statement~~ filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b) of the Rules and Regulations, the Prospectus shall have been ~~declared effective on or before the date and time requested~~ filed in the ~~acceleration request submitted on behalf~~ manner and within the time period required by Rule 424(b) of the ~~Representatives pursuant~~ Rules and Regulations; and prior to ~~Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made;~~ such Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission~~ and no proceedings for that purpose shall have been instituted or ~~any state securities commission nor~~shall be pending or, to the knowledge of the Company, the Selling Stockholder or you, shall ~~any proceedings for that purpose have been instituted or threatened~~be contemplated by the Commission; and any request of the Commission ~~or any state securities commission~~ for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to ~~the reasonable satisfaction of the Representatives acting in good faith~~your satisfaction. (b) ~~Subsequent to~~ You shall be satisfied that since the ~~execution~~ respective dates as of ~~this Agreement,~~ which information is given in the Registration Statement and Prospectus, (i) except as disclosed in the Prospectus, there shall not have ~~occurred~~ been any change in the capital stock other than pursuant to the exercise of outstanding options and the issuance of Class A Common Stock pursuant to the Selling Stockholder's Long-Term Incentive Plan or ~~development involving~~any material change in the indebtedness (other than in the ordinary course of business) of the Company, (ii) except as set forth or contemplated by the Registration Statement or the Prospectus, no material verbal or written agreement or other transaction shall have been entered into by the Company, which ~~could be reasonably expected to involve, a Material Adverse Effect, whether or~~ is not ~~arising from transactions~~ in the ordinary course of business, ~~and~~ (iiiii) ~~the Company shall not have sustained any~~ no loss or ~~interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity~~ damage (whether or not insured) to the property of the Company shall have been sustained which materially and adversely affects the condition (financial or ~~from any court~~ otherwise), business or results of operations of the Company, (iv) no legal or governmental action, ~~order~~ suit or ~~decree having a Material Adverse Effect~~proceeding affecting the Company which is material to the Company or which affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any material change in the condition (financial or otherwise), business, management or results of operations of the ~~effect of~~ Company which ~~on the Company, in any such case described in clause (i)~~ makes it impractical or ~~(ii) above, is~~ inadvisable in the reasonable ~~and good faith opinion~~ judgment of the Representatives ~~so material and adverse as to make it impracticable or inadvisable~~ to proceed with the public offering or purchase the ~~delivery of the~~ Common Shares ~~on the terms and in the manner~~ as contemplated ~~in the Registration Statement and the Prospectus~~hereby. (c) ~~The Representatives~~ There shall ~~not~~ have ~~advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that~~been furnished to you on each Closing Date, in ~~the reasonable~~ form and ~~good faith~~ substance satisfactory to you, except as otherwise expressly provided below: (i) An opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives shall have received opinions of Foley & Lardner, special couns▇▇▇▇▇▇ ▇▇r ▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Company ~~(as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)),~~ and the ~~Vice President~~Selling Stockholder, ~~General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii)~~ addressed to the ~~Representatives, as the representatives of the Underwriters,~~ Underwriters and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that: (i1) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of ~~Delaware~~its jurisdiction of incorporation, ~~with~~ is duly qualified to do business as a foreign corporation and is in good standing in all other jurisdictions where the ownership or leasing of properties or the conduct of its business requires such qualification, except for jurisdictions in which the failure to so qualify would not have a material adverse effect on the Company, and has full corporate power and authority to ~~own, lease and operate~~ own its properties and conduct its business as ~~presently conducted and as~~ described in ~~the Prospectus and~~ the Registration Statement; (ii2) The ~~authorized~~ authorized, issued and outstanding capital stock of the Company ~~consists~~ is as set forth under the caption "Capitalization" in the Prospectus; immediately upon consummation of ~~60,000,000 shares of Common Stock~~the Offering, ~~par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The~~ the Selling Stockholder will own all the issued and outstanding shares of ~~capital stock~~ Common Stock which are not sold in the Offering other than the shares of ~~the Company immediately prior~~ Class A Common Stock issued pursuant to the ~~sale~~ Selling Stockholder's Long-Term Incentive Plan; all necessary and proper corporate proceedings have been taken in order to validly authorize such Common Stock; all outstanding shares of Common Stock (including the Firm Common Shares ~~hereunder~~ and any Optional Common Shares) have been duly ~~authorized~~ and validly issued, are fully paid and ~~nonassessable~~ nonassessable, have been issued in compliance with the registration and qualification requirements of federal and state securities laws (~~except, to~~ other than as may be required by state securities laws for the ~~extent applicable~~Common Shares, as ~~otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted~~to which such counsel need express no opinion), ~~and~~were not issued in violation of or subject to any preemptive rights or, to such counsel's knowledge~~, there are no preemptive, preferential or, except as described in the Prospectus~~, other rights to subscribe for or purchase any ~~shares of capital stock of~~ securities and conform to the ~~Company and~~description thereof in the Prospectus; without limiting the foregoing, there are no preemptive or, to such counsel's knowledge, ~~no shares of capital stock~~ other rights to subscribe for or purchase any of the Common Shares to be sold by the Company ~~have been issued in violation~~ hereunder or any rights of ~~such rights~~first refusal to purchase the Common Shares to be sold by the Selling Stockholder hereunder; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v3) The certificates ~~for~~ evidencing the Common Shares to be delivered hereunder ~~conform~~ are in ~~all material respects to the requirements of the~~ due and proper form under Delaware ~~General Corporation Law and the rules and regulations of the New York Stock Exchange;~~ law, and when duly countersigned by the Company's transfer ~~agent~~agent and registrar, and delivered to ~~the Representatives~~ you or upon ~~the~~ your order ~~of the Representatives~~ against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Common Shares represented thereby will be duly authorized and validly issued, fully paid and ~~nonassessable~~ nonassessable, will not have been issued in violation of or subject to any preemptive rights or, to such counsel's knowledge, other rights to subscribe for or purchase securities and will conform in all respects to the description thereof contained in the Prospectus; (~~except~~4) Except as disclosed in or specifically contemplated by the Prospectus, to the ~~extent applicable~~best of such counsel's knowledge there are no outstanding options, ~~as otherwise provided in Section 180.0622(2)(b)~~ warrants or other rights calling for the issuance of, and no commitments, plans or arrangements to issue, any shares of capital stock of the ~~Wisconsin Business Corporation Law, as judicially interpreted)~~Company or any security convertible into or exchangeable for capital stock of the Company; (via) The Registration Statement has become effective under the ~~Act and~~Act, and to the best of such counsel's ~~knowledge,~~ knowledge no stop order suspending the effectiveness of the Registration Statement or preventing the use of the Prospectus has been issued and no proceedings for that purpose have been instituted or are ~~threatened~~ pending or contemplated by the Commission; ~~the Registration Statement and~~ any required filing of the Prospectus and any supplement thereto pursuant to Rule 424(b) and 462(b) of the Rules and Regulations has been made in the manner and within the time period required by such Rule 424(b) or 462(b); (b) The Registration Statement, the Prospectus and each amendment or supplement ~~thereto, including any document incorporated by reference into the Registration Statement~~ thereto (except for the financial statements and schedules and other financial and statistical ~~or financial~~ data included ~~therein,~~ therein as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the ~~Act;~~ Act and the ~~conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied;~~Rules and Regulations. (~~vii~~c) To the best of such counsel's knowledge, there are no franchises, leases, contracts, agreements or documents of a character required to be disclosed in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not disclosed or filed as required, and the descriptions thereof or references thereto are accurate summaries in all material respects; and (d) To the best of such counsel's knowledge, there are no legal or governmental actions, suits or proceedings pending or threatened ~~legal or governmental proceedings that~~ against the Company which are required to be described in the ~~Registration Statement or the~~ Prospectus ~~that~~ which are not ~~so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be~~ described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as ~~an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference~~ required;. (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix6) The Company has full corporate right, power and authority to enter into this Agreement and ~~perform~~ to sell and deliver the Common Shares to be sold by it to the several Underwriters; this ~~Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have~~ Agreement has been duly and validly authorized ~~by the Company~~ by all necessary corporate action ~~and this Agreement~~ by the Company, has been duly and validly executed and delivered by and on behalf of the Company, and is a ~~legal,~~ valid and binding agreement of ~~the Company enforceable against~~ the Company in accordance with its terms, except ~~that rights to indemnity or contribution hereunder~~ as enforceability may be limited by ~~applicable law and except as to enforceability of this Agreement may be limited by~~ general equitable principles, bankruptcy, insolvency, reorganization, moratorium or other ~~similar~~ laws affecting creditors' rights ~~generally~~generally and except as to those provisions relating to indemnity or contribution for liabilities arising under the Act as to which no opinion need be expressed; and no approval, ~~and by equitable principles limiting the right to specific performance~~ authorization, order, consent, registration, filing, qualification, license or permit of or with any court, regulatory, administrative or other ~~equitable relief; and~~governmental body is required for the execution and delivery of this Agreement by the Company or the consummation of the transactions contemplated by this Agreement, except such as have been obtained and are in full force and effect under the Act and such as may be required under applicable Blue Sky laws in connection with the purchase and distribution of the Common Shares by the Underwriters and the clearance of such offering with the NASD; (7) The execution and performance of this Agreement by the Company and the Selling Stockholder and the consummation of the transactions herein contemplated will not conflict with, result in the breach of, or constitute, either by itself or upon notice or the passage of time or both, a default under, any agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument known to such counsel to which the Company is a party or by which the Company or any of its properties may be bound or affected which is material to the Company, or violate any of the provisions of the certificate of incorporation or bylaws, or other organizational documents, of the Company or, so far as is known to such counsel, violate any statute, judgment, decree, order, rule or regulation of any court or governmental body having jurisdiction over the Company or any of its properties; (8) The Company is not in violation of its certificate of incorporation or bylaws, or other organizational documents, or to the best of such counsel's knowledge, in breach of or default with respect to any provision of any agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument known to such counsel to which the Company is a party or by which it or any of its properties may be bound or affected, other than with respect to two of the Company's product supply contracts (No. GS-00K-91AGS-0567 and GS-00K-94AGS-0451) subject to GSA regulations and except where such breach or default would not materially adversely affect the Company; (9) To the best of such counsel's knowledge, no ~~consent~~holders of securities of the Company have rights which have not been waived to the registration of shares of Common Stock or other securities, because of the filing of the Registration Statement by the Company or the offering contemplated hereby; (10) The statements in the Registration Statement and Prospectus under the headings "Management--Stock Plans," "Relationship with ▇▇▇▇ ▇▇▇▇▇▇▇" and "Description of Capital Stock" and in the Registration Statement in Items 14 and 15, insofar as they are descriptions of contracts, agreements or other legal documents, and under the heading "Shares Eligible for Future Sale" insofar as they refer to statements of law or legal conclusions, are accurate and complete and present fairly the information required to be shown; (11) This Agreement has been duly authorized, executed and delivered by or on behalf of the Selling Stockholder; the execution and performance of this Agreement by the Selling Stockholder and the consummation of the transactions herein contemplated will not violate any provision of the Certificate of Incorporation or Bylaws of the Selling Stockholder and will not result in a breach of, or constitute a default under, any indenture, mortgage, deed of trust, trust (constructive or other), loan agreement, lease, franchise, license or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder or any of its properties may be bound and which relates to any indebtedness of the Selling Stockholder, or violate any statute, judgment, decree, order, rule or regulation known to such counsel of any court or governmental body having jurisdiction over the Selling Stockholder or any of its properties; and no approval, ~~authorization or other~~ authorization, order or ~~decree~~ consent of any court, regulatory ~~or governmental~~ body~~, arbitrator~~, administrative agency or other ~~instrumentality of the United States having jurisdiction over the Company,~~ governmental body is required for the execution and delivery of this Agreement or the consummation by the Selling Stockholder of the transactions contemplated by this Agreement, except such as have been obtained and are in full force and effect under the Act and such as may be required under the rules of the NASD and applicable Blue Sky laws; (12) The Selling Stockholder has full corporate right, power and authority to enter into this Agreement and to sell, transfer and deliver the Common Shares to be sold by the Selling Stockholder hereunder; and good and marketable title to such Common Shares so sold, free and clear of all liens, encumbrances, equities, claims, restrictions, security interests, voting trusts, or other defects of title whatsoever, has been transferred to the Underwriters (whom counsel may assume to be bona fide purchasers) who have purchased such Common Shares hereunder; (13) This Agreement constitutes a valid and binding agreement of the Selling Stockholder in accordance with its terms except as enforceability may be limited by general equitable principles, bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally and except with respect to those provisions relating to indemnities or contributions for ~~compliance with~~ liabilities under the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument as to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylawsopinion need be expressed; and (~~xiv~~14) ~~The~~ No transfer taxes are required to be paid in connection with the sale and delivery of the Common Shares to the Underwriters hereunder. In rendering such opinion, such counsel may rely as to matters of local law on opinions of local counsel, and as to matters of fact on certificates of officers of the Selling Stockholder and of the Company and of governmental officials, in which case their opinion is ~~not an "investment company," as~~ to state that they are so doing and that the Underwriters are justified in relying on such ~~term is defined in~~ opinions or certificates and copies of said opinions or certificates are to be attached to the ~~Investment Company Act of 1940, as amended~~opinion. Such counsel shall also ~~state~~ include a statement to the effect that ~~they have participated in conferences with officers and other representatives of~~ nothing has come to such counsel's attention that would lead such counsel to believe that either at the ~~Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content~~ effective date of the Registration Statement ~~and~~ or at the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into applicable Closing Date the Registration Statement or the Prospectus, on or any such amendment or supplement thereto (except for the ~~basis of the information that was developed in the course of the performance of~~ financial statements and schedules and other financial and statistical data included therein as to which such ~~services~~counsel need express no opinion), ~~they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained~~ contains any untrue statement of a material fact ~~or omitted~~ or omits to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading~~, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as~~ ; (ii) An opinion of the ~~Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light~~ General Counsel of the ~~circumstances under which they were made~~Selling Stockholder, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "addressed to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company Underwriters and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i1) ~~The representations and warranties~~ To the best of such counsel's knowledge, the Company ~~set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate~~owns all patents, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatoriestrademarks, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectustrademark registrations, ~~and any amendment or supplement thereto~~service marks, ~~including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement~~service ▇▇▇▇ registrations, ~~and such documents contain all statements of material fact required to be stated therein~~trade names, ~~and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading~~copyrights, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set foli

Appears in 1 contract

Sources: Underwriting Agreement (Larscom Inc)

Conditions of the Obligations of the Underwriters. The ------------------------------------------------- obligations of the several Underwriters ~~under this Agreement~~ to purchase and pay for the Firm Common Shares on the First Closing Date and the Optional Common Shares on the Second Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder herein set forth as of the date hereof and as of ~~each~~ the First Closing Date or the Second Closing Date, as the case may be, to the accuracy of the statements of Company officers and the ~~Company's officers~~ Selling Stockholder made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company and the Selling Stockholder of ~~its~~ their respective obligations hereunder, and to the following additional conditions~~, unless waived in writing by the Representatives~~: (a) The Registration Statement shall have ~~been declared~~ become effective ~~by the Commission~~ not later than ~~5:30 p.m.~~5:00 P.M. (or, in the case of a registration statement filed pursuant to Rule 462(b) of the Rules and Regulations relating to the Common Shares, not later than 10 P.M.), Washington, D.C. ~~time~~Time, on the date of this Agreement, or at such later time ~~and date~~ as shall have been consented to by ~~the Representatives, which consent shall be deemed to have been given~~ you; if the ~~Registration Statement~~ filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b) of the Rules and Regulations, the Prospectus shall have been ~~declared effective on or before the date and time requested~~ filed in the ~~acceleration request submitted on behalf~~ manner and within the time period required by Rule 424(b) of the ~~Representatives pursuant~~ Rules and Regulations; and prior to ~~Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made;~~ such Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission~~ and no proceedings for that purpose shall have been instituted or ~~any state securities commission nor~~shall be pending or, to the knowledge of the Company, the Selling Stockholder or you, shall ~~any proceedings for that purpose have been instituted or threatened~~be contemplated by the Commission; and any request of the Commission ~~or any state securities commission~~ for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to ~~the reasonable satisfaction of the Representatives acting in good faith~~your satisfaction. (b) ~~Subsequent to~~ You shall be satisfied that since the ~~execution~~ respective dates as of ~~this Agreement,~~ which information is given in the Registration Statement and Prospectus, (i) there shall not have ~~occurred~~ been any change in the capital stock other than pursuant to the exercise of outstanding options and warrants disclosed in the Prospectus of the Company or ~~development involving,~~ any of its subsidiaries or ~~which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions~~ any material increase in the indebtedness (other than in the ordinary course of business) of the Company or any of its subsidiaries, ~~and~~ (ii) except as set forth or contemplated by the Registration Statement or the Prospectus, no material verbal or written agreement or other transaction shall have been entered into by the Company ~~shall~~ or any of its subsidiaries, which is not ~~have sustained any~~ in the ordinary course of business or which could reasonably be expected to result in a material reduction in the future earnings of the Company and its subsidiaries, (iii) no loss or ~~interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity~~ damage (whether or not insured) to the property of the Company or ~~from~~ any ~~court~~ of its subsidiaries shall have been sustained which materially and adversely affects the condition (financial or otherwise), business, results of operations or prospects of the Company and its subsidiaries, (iv) no legal or governmental action, ~~order~~ suit or ~~decree having a Material Adverse Effect~~proceeding affecting the Company or any of its subsidiaries which is material to the Company and its subsidiaries or which affects or could reasonably be expected to affect the transactions contemplated by this Agreement shall have been instituted or threatened, ~~the effect of which on the Company, in~~ and (v) there shall not have been any ~~such case described in clause (i) or (ii) above, is~~ material change in the ~~reasonable~~ condition (financial or otherwise), business, management, results of operations or prospects of the Company and ~~good faith opinion~~ its subsidiaries which makes it impractical or inadvisable in the judgment of the Representatives ~~so material and adverse as to make it impracticable or inadvisable~~ to proceed with the public offering or purchase the ~~delivery of the~~ Common Shares ~~on the terms and in the manner~~ as contemplated ~~in the Registration Statement and the Prospectus~~hereby. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives There shall have ~~received opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company (as~~ been furnished to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representativesyou, as ~~the representatives~~ Representatives of the Underwriters, on each Closing Date, in form and substance satisfactory to you, except as otherwise expressly provided below: (i) An opinion of Sidley & Austin, counsel for the Company, addressed to the Underwriters and dated the First Closing ~~Date~~ Date, or the Second Closing Date, as the case may be, to the effect that: (i1) ~~The~~ Each of the Company and its subsidiaries incorporated in the United States (each a "U.S. Sub") has been duly incorporated and is validly existing as a corporation in good standing under the laws of ~~Delaware~~its jurisdiction of incorporation, ~~with full~~ is duly qualified to do business as a foreign corporation and is in good standing in all other jurisdictions where the ownership or leasing of properties or the conduct of its business requires such qualification, except for jurisdictions in which the failure to so qualify would not have a material adverse effect on the Company and its subsidiaries, and has the corporate power and authority to ~~own, lease and operate~~ own its properties and conduct its business as ~~presently conducted and as~~ described in ~~the Prospectus and~~ the Registration Statement; (ii2) The authorized capital stock of the Company ~~consists of 60,000,000~~ conforms as to legal matters in all material respects to the description thereof in the Prospectus; all necessary corporate proceedings have been taken in order to authorize validly such authorized capital stock; all outstanding shares of Common ~~Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share,~~ Stock (including the Firm Common Shares and ~~77,000,000 shares of preferred stock, $1.00 par value per share; (iii~~any Optional Common Shares) ~~The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder~~ have been duly ~~authorized~~ and validly issued, are fully paid and ~~nonassessable (except~~nonassessable, and were not issued in violation of or subject to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, any preemptive rights or other rights to subscribe for or purchase any ~~shares~~ securities and conform to the description thereof contained in the Prospectus; without limiting the foregoing, to the knowledge of ~~capital stock~~ such counsel, there are no preemptive or other rights to subscribe for or purchase any of the Common Shares to be sold by the Company hereunder; (3) All of each U.S. Sub's issued and outstanding shares have been duly and validly authorized and issued, are fully paid and nonassessable and, except as disclosed in the Prospectus, are owned of record and otherwise to such counsel's ~~knowledge, no shares of capital stock of~~ knowledge by the Company ~~have been issued in violation~~ free and clear of ~~such rights~~all liens, encumbrances, equities, claims, security interests, voting trusts or other defects of title whatsoever; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v4) The certificates ~~for~~ evidencing the Common Shares to be delivered hereunder ~~conform~~ are in ~~all material respects to the requirements of the~~ due and proper form under Delaware ~~General Corporation Law and the rules and regulations of the New York Stock Exchange;~~ law, and when duly countersigned by the Company's transfer ~~agent~~agent and registrar, and delivered to ~~the Representatives~~ you or upon ~~the~~ your order ~~of the Representatives~~ against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Common Shares represented thereby will be duly authorized and validly issued, fully paid and ~~nonassessable (except~~nonassessable, will not have been issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities and will conform in all material respects to the ~~extent applicable, as otherwise provided~~ description thereof contained in ~~Section 180.0622(2)(b) of~~ the ~~Wisconsin Business Corporation Law, as judicially interpreted)~~Prospectus; (vi5) Except as disclosed in or specifically contemplated by the Prospectus, to such counsel's knowledge, there are no outstanding options, warrants or other rights calling for the issuance of any shares of capital stock of the Company or any security convertible into or exchangeable for capital stock of the Company; (a) The Registration Statement has become effective under the ~~Act~~ Act, and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement or preventing the use of the Prospectus has been issued and no proceedings for that purpose have been instituted or are ~~threatened~~ pending or contemplated by the Commission; ~~the Registration Statement and~~ any required filing of the Prospectus and any supplement thereto pursuant to Rule 424(b) of the Rules and Regulations has been made in the manner and within the time period required by such Rule 424(b); (b) The Registration Statement, the Prospectus and each amendment or supplement ~~thereto, including any document incorporated by reference into the Registration Statement~~ thereto (except for the financial statements and schedules and other ~~statistical or~~ financial data included ~~therein,~~ therein as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the ~~Act~~Act and the Rules and Regulations; ~~the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied;~~and (~~vii~~c) To such counsel's knowledge, there are no ~~pending~~ franchises, leases, contracts, agreements or ~~threatened~~ documents of a character required to be disclosed in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not disclosed or filed, as required. (d) To such counsel's knowledge, there are no legal or governmental ~~proceedings that~~ actions, suits or proceedings, pending or threatened, against the Company or any of its U.S. Subs which are required to be described in the ~~Registration Statement or the~~ Prospectus ~~that~~ which are not ~~so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be~~ described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as ~~an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference~~ required;. (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix7) The Company has ~~full~~ corporate power ~~and authority~~ to enter into the Underwriting Agreement and to perform its obligations thereunder; this ~~Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have~~ Agreement has been duly and validly authorized ~~by the Company~~ by all necessary corporate action ~~and this Agreement~~ by the Company, has been duly and validly executed and delivered by and on behalf of the Company, and is a ~~legal,~~ valid and binding agreement of the Company enforceable ~~against the Company~~ in accordance with its terms, except ~~that rights to indemnity or contribution hereunder~~ as enforceability may be limited by ~~applicable law and except as to enforceability of this Agreement may be limited by~~ general equitable principles, bankruptcy, insolvency, reorganization, moratorium or other ~~similar~~ laws affecting creditors' rights ~~generally~~generally and except as to those provisions relating to indemnity or contribution as to which no opinion need be expressed; and no approval, ~~and by equitable principles limiting the right to specific performance or other equitable relief; and~~authorization, ~~to such counsel's knowledge~~order, no consent, ~~approval~~registration, ~~authorization~~ filing, qualification, license or ~~other order~~ permit of or ~~decree of~~ with any court, ~~regulatory or governmental body, arbitrator~~regulatory, administrative ~~agency~~ or other ~~instrumentality of the United States having jurisdiction over the Company,~~ governmental body is required for the execution and delivery of this Agreement by the Company or the consummation of the transactions contemplated by this ~~Agreement (~~Agreement, except ~~for compliance with~~ such as have been obtained and are in full force and effect under the ~~Act, the Exchange Act,~~ Act and such as may be required under applicable Blue Sky ~~Laws~~ laws in connection with the purchase and distribution of the Common Shares by the Underwriters and the clearance of ~~the underwriting arrangements~~ such offering with the NASD); (x) 8) The ~~execution, delivery~~ execution and performance of this Agreement by and the ~~Company will not: (A) violate any provisions~~ consummation of the ~~Articles of Incorporation or Bylaws of~~ transactions herein contemplated will not (i) conflict with, result in the ~~Company or the Significant Subsidiary; (B) violate any of the provisions~~ breach of, or ~~result in~~ constitute, either by itself or upon notice or the ~~breach~~passage of time or both, ~~modification or termination of, or constitute~~ a default under, any agreement, mortgage, deed of trust, lease, franchise, license, indenture, ~~permit, mortgage, deed of trust, other evidence of indebtedness~~ permit or other instrument known to such counsel to which the Company or ~~the Significant Subsidiary~~ any U.S. Sub is a party or by which the Company or ~~the Significant Subsidiary,~~ any U.S. Sub or any of their respective ~~owned~~ properties may be bound or ~~leased property is bound~~affected, ~~and which is filed or incorporated by reference as an exhibit to the Registration Statement;~~ or (Cii) violate any of the provisions of the certificate of incorporation or bylaws, or other organizational documents, of the Company or any U.S. Sub, or (iii) so far as is known to such counsel, violate any statute, ~~ordinance~~judgment, decree, order, ~~rule, decree~~ rule or regulation of any ~~court, regulatory~~ court or governmental ~~body, arbitrator, administrative agency or other instrumentality of the United States~~ body having jurisdiction over the Company or any U.S. Sub or any of their respective properties, except in the ~~Significant Subsidiary~~ case of clauses (~~assuming compliance with all applicable federal~~ i) and ~~state securities laws)~~(iii) for any such breach, default, conflict or violation which could not reasonably be expected to have a material adverse effect on the Company and its subsidiaries; (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii9) To such counsel's knowledge, neither the Company nor ~~the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be,~~ any U.S. Sub is in violation of its ~~respective Articles~~ certificate of ~~Incorporation~~ incorporation or ~~Bylaws~~bylaws, or other organizational documents; (10) To such counsel's knowledge, no holders of securities of the Company have rights which have not been waived, to the registration of shares of Common Stock or other securities, because of the filing of the Registration Statement by the Company or the offering contemplated hereby or the use of proceeds contemplated in the Prospectus; and (~~xiv~~11) ~~The Company is not an "investment company,"~~ No transfer taxes are required to be paid in connection with the sale and delivery of the Common Shares to the Underwriters hereunder, except as ~~such term is defined~~ required under Article 12 of New York State tax law in the ~~Investment~~ case of the shares being sold by the Selling Stockholder. In rendering such opinion, such counsel may rely as to matters of local law, on opinions of local counsel, and as to matters of fact, on certificates of officers of the Company ~~Act~~ or the U.S. Subs and of ~~1940~~governmental officials, ~~as amended~~in which case their opinion is to state that they are so doing and that the Underwriters are justified in relying on such opinions or certificates and copies of said opinions or certificates are to be attached to the opinion. Such counsel shall also ~~state~~ include a statement to the effect that ~~they have participated in conferences with officers and other representatives of~~ nothing has come to such counsel's attention that would lead such counsel to believe that either at the ~~Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content~~ effective date of the Registration Statement ~~and~~ or at the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into applicable Closing Date the Registration Statement or the Prospectus, ~~on the basis of the information that was developed in the course of the performance of~~ or any such ~~services~~amendment or supplement, ~~they have~~ except for financial statements and schedules and other statistical or financial data as to which such counsel need express no ~~reason to believe that the Registration Statement including any document incorporated by reference therein~~belief, ~~on its effective date, contained~~ contains any untrue statement of a material fact ~~or omitted~~ or omits to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (eii) ~~The Representatives shall have received an~~ An opinion of ~~Michael Best & Friedrich LLP~~Venable, Baetjer, ▇▇▇▇▇▇▇ ~~▇▇▇ the~~ & ▇▇▇▇▇▇▇▇~~ters~~▇, LLP, counsel for the Company, addressed to the Underwriters and dated the First Closing ~~Date~~ Date, or the Second Closing Date, as the case may be, ~~with respect~~ to the ~~sale~~ effect that the statements set forth under the headings "Business - Certain Legal Proceedings" and "Business - Government Contracts and Regulation" in the Prospectus, insofar as such statements constitute a summary of the ~~Shares hereunder~~laws, ~~the Registration Statement~~ regulations, legal matters, documents or proceedings referred to therein, provide a fair and ~~other related matters as the Representatives may reasonably require~~accurate summary of such laws, ~~and the Company shall have furnished to such counsel such~~ regulations, legal matters, documents and ~~shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters~~proceedings. (fiii) ~~The Representatives shall have received on~~ With respect to each Material Subsidiary, an opinion of local counsel acceptable to the Underwriters, addressed to the Underwriters and dated the First Closing Date, ~~a certificate of Kenneth W. Krueger~~or the Second Closing Date, ~~Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of~~ as the ~~Company, in their respective capacities as such~~case may be, to the effect that: (i1) Such subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, is duly qualified to do business as a foreign corporation and is in good standing in all other jurisdictions where the ownership or leasing of properties or the conduct of its business requires such qualification, except for jurisdictions in which the failure to so qualify would not have a material adverse effect on the Company and its subsidiaries, and has the corporate power and authority to own its properties and conduct its business as described in the Registration Statement; (2) All of such subsidiary's issued and outstanding shares have been duly and validly authorized and issued, are fully paid and nonassessable and, except as disclosed in the Prospectus, are owned of record and otherwise to such counsel's knowledge by the Company free and clear of all liens, encumbrances, equities, claims, security interests, voting trusts or other defects of title whatsoever; (3) The ~~representations~~ execution and ~~warranties of the Company set forth in Section 2 hereof are true and correct as of the date~~ performance of this Agreement and as the consummation of the ~~date~~ transactions herein contemplated will not (i) conflict with, result in the breach of, or constitute, either by itself or upon notice or the passage of time or both, a default under, any agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument known to such ~~certificate~~counsel to which such subsidiary is a party or by which such subsidiary or any of its property may be bound or affected, ~~and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed~~ or ~~satisfied by it at or prior to the date of such certificate;~~ (ii) ~~The Commission has not issued an order preventing or suspending the use~~ violate any of the ~~Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness~~ provisions of the ~~Registration Statement has been issued; and to the knowledge~~ certificate of ~~the respective signatories~~incorporation or bylaws, ~~no proceedings for that purpose have been initiated~~ or ~~are pending under the Act~~ other organizational documents, of such subsidiary, or ~~under the Blue Sky Laws of any jurisdiction;~~ (iii) ~~Each~~ so far as is known to such counsel, violate any statute, judgment, decree, order, rule or regulation of any court or governmental body having jurisdiction over such subsidiary or any of its property, except in the case of clauses (i) and (iii) for any such breach, default, conflict or violation which could not reasonably be expected to have a material adverse effect on the Company and its subsidiaries; and (4) Such subsidiary is not in violation of its certificate of incorporation or bylaws, or other organizational documents, or to the best of such counsel's knowledge, in breach of or default with respect to any provision of any agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument known to such counsel to which such subsidiary is a party or by which its properties may be bound or affected, except where such default would not materially adversely affect the Company and its subsidiaries. In rendering such opinion, such counsel may rely as to matters of fact, on certificates of officers of the ~~respective signatories has examined the Registration Statement and the Prospectus, and any amendment~~ Company or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set fosuch

Appears in 1 contract

Sources: Underwriting Agreement (Firearms Training Systems Inc)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Class A Bonds on the Closing Date will be subject to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of~~ AMS Parties and the ~~date hereof and as of each Closing Date~~Issuer Trustee herein, to the accuracy of the statements of officers of the ~~Company's officers~~ AMS Parties and the Issuer Trustee made pursuant to the provisions hereof, to the performance ~~in all material respects by~~ of the ~~Company~~ AMS Parties and the Issuer Trustee of ~~its~~ their obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The Registration Statement shall have ~~been declared~~ become effective, or if a post-effective by amendment is required to be filed under the ~~Commission~~ Securities Act, such post-effective amendment shall have become effective, not later than ~~5:30 p.m.~~5:00 P.M., ~~Washington, D.C.~~ New York City time, on the date ~~of this Agreement,~~ hereof or on such later ~~time~~ date to which the Representative has consented; and date as shall have been consented to by the Representatives, which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment shall be in effect, and no proceedings for such purpose shall be pending before or threatened by the Commission. The Prospectus, including all price-related information previously omitted from the prospectus which formed a part of the Registration Statement at the time it became effective, in accordance with Rule 430A, shall have been ~~issued~~ transmitted to the Commission for filing pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the ~~Commission or any state securities commission nor,~~ rules and regulations under the Securities Act and in accordance with Section 5.1.(a) hereof; and prior to the ~~knowledge~~ Closing Date the Trust Manager shall have provided evidence satisfactory to the Representative of ~~the Company~~such timely filing, ~~shall any proceedings~~ and all requests for ~~that purpose have been instituted or threatened; and any request of the Commission or any state securities commission for inclusion of~~ additional information ~~in the Registration Statement, or otherwise,~~ shall have been complied with to the ~~reasonable~~ satisfaction of the ~~Representatives acting in good faith~~Representative. (b) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) any change, or any development or event involving a prospective change, in the condition (~~ii) above~~financial or other), business, properties or results of operations of any of the AMS Parties, the Issuer Trustee, the Interest Rate Swaps Counterparty or the Currency Swap Counterparty and their respective subsidiaries, in each case, taken as one enterprise, which, in the judgment of a majority in interest of the Underwriters including the Representative, is ~~in the reasonable and good faith opinion of the Representatives so~~ material and adverse ~~as to make~~ and makes it ~~impracticable~~ impractical or inadvisable to proceed with completion of the public offering or the ~~delivery~~ sale of and payment for the Class A Bonds; (ii) any downgrading in the rating of any debt securities of any of the ~~Shares~~ Trust Manager, AMS, the Issuer Trustee, the Interest Rate Swaps Counterparty or the Currency Swap Counterparty by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of the Bonds or any debt securities of any of the Trust Manager, AMS, the Issuer Trustee, the Interest Rate Swaps Counterparty or the Currency Swap Counterparty (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any material suspension or material limitation of trading in securities generally on the ~~terms and~~ New York Stock Exchange, the London Stock Exchange or any other exchange on which the Class A Bonds are listed, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of any of the Trust Manager, AMS, the Issuer Trustee, any Interest Rate Swap Counterparty or the Currency Swap Counterparty on any exchange or in the ~~manner contemplated~~ over-the-counter market; (iv) any banking moratorium declared by U.S. Federal, New York, London, England or Australia authorities; or (v) any outbreak or escalation of major hostilities in which the United States, England or Australia is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the ~~Registration Statement~~ judgment of a majority in interest of the Underwriters including the Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the ~~Prospectus~~Class A Bonds. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives Representative shall have received ~~opinions~~ a certificate, dated such Closing Date, of ~~Foley & Lardner~~the managing director, ~~special couns▇▇ ▇▇r the Company~~ director or any chief general manager of each AMS Party and (as to ~~the matters set forth below in subsections~~ paragraphs (i~~), (ii), (vi), (viii), (ix~~) and (~~xiv)), and the Vice President, General Counsel and Secretary~~ ii) below only) of an authorized officer of the ~~Company (as to the matters set forth~~ Issuer Trustee in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may bewhich such officers, to the ~~effect~~ best of their knowledge after reasonable investigation, shall state that: : (i) ~~The Company is validly existing as a corporation~~ the representations and warranties of such entity in ~~good standing under the laws of Delaware, with full corporate power~~ this Agreement are true and ~~authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement;~~ correct; (ii) ~~The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share,~~ such entity has complied with all agreements and ~~77,000,000 shares of preferred stock, $1.00 par value per share;~~ satisfied all conditions on its part to be performed or satisfied hereunder at or prior to such Closing Date; (iii) ~~The issued and outstanding shares of capital stock~~ in the case of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledgeTrust Manager, no stop order suspending the effectiveness of ~~the~~ any Registration Statement has been issued and no proceedings for that purpose have been instituted or are ~~threatened~~ contemplated by the Commission; and (iv) subsequent to the date of the most recent financial statements supplied by the AMS Parties to the Underwriters or the Representative on behalf of the Underwriters, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of such entity and its subsidiaries taken as a whole except as set forth in or contemplated by the Prospectus or as described in such certificate. (d) Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Australian counsel for AMS, the Trust Manager and the Servicer, shall have furnished to the Representative their written opinion, dated the Closing Date, in form and substance satisfactory to the Representative, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. (e) Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Australian tax counsel for AMS, the Trust Manager and the Servicer, shall have furnished to the Representative their written opinion, dated the Closing Date, in form and substance satisfactory to the Representative, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. (f) The Representative shall have received two letters, one dated the date hereof and one dated the Closing Date, of KPMG confirming that they are independent public accountants within the standards established by the American Institute of Certified Public Accountants and stating to the effect that they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Registration Statement (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the AMS Parties and their subsidiaries subject to the internal controls of such parties' accounting system or are derived directly from such records by analysis or computation or from the collateral tape containing the description of the Housing Loans) with the results obtained from inquiries, a reading of such general accounting records and collateral tape and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. (g) Mayer, Brown, ▇▇▇▇ & Maw, United States counsel for the AMS Parties and the Issuer Trustee, shall have furnished to the Representative their written opinion, dated the Closing Date, in form and substance satisfactory to the Representative, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters, to the effect that: (1) The Bond Trust Deed has been duly qualified under the Trust Indenture Act; (2) To such counsel's knowledge, there are no material contracts, indentures, or other documents of a character required to be described or referred to under either the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement other than those described or referred to therein or filed or incorporated by reference as exhibits thereto; (3) The Trust is not and, after giving effect to the offering and sale of the Bonds and the application of the proceeds thereof as described in the Prospectus, will not be an "investment company" as defined in the Investment Company Act of 1940; (4) No consent, approval, authorization or order of, or filing with, any governmental agency located in the United States or body or any court located in the United States is required for the consummation of the transactions contemplated by this Agreement in connection with the issuance or sale of the Bonds by the Issuer Trustee, except such as have been obtained and made under the Securities Act and the Trust Indenture Act and such as may be required under state securities laws; (5) The Registration Statement was filed and was declared effective under the Securities Act as of the date and time specified in such opinion, the Prospectus either was filed with the Commission pursuant to subparagraph (4) of Rule 424(b) on the date specified therein, and, to the best of the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, and each Registration Statement and the ~~Prospectus~~ Prospectus, and ~~any~~ each amendment or supplement thereto, ~~including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical~~ as of their respective effective or ~~financial data included therein~~issue dates, ~~as to which such counsel need express no opinion) comply~~ complied as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Securities Act, the ~~Exchange Act, applicable Blue Sky Laws~~ Trust Indenture Act and the ~~clearance of the underwriting arrangements with the NASD); (x) The execution, delivery~~ Rules and ~~performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary~~Regulations; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that any part of the Registration Statement ~~including~~ or any ~~document incorporated by reference therein~~amendment thereto, on as of its effective ~~date~~date or as of such Closing Date, contained any untrue statement of a material fact or omitted ~~or omits~~ to state any material fact required to be stated therein or necessary to make the statements therein not ~~misleading,~~ misleading or that the ~~Prospectus,~~ Prospectus or any amendment or supplement ~~thereto including any document incorporated by reference therein~~thereto, as of its issue date ~~and~~ or as of ~~the~~ such Closing Date, contained ~~or contains~~ any untrue statement of a material fact or omitted ~~or omits~~ to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading (provided~~ misleading; the descriptions in the Registration Statement and Prospectus of statutes, legal and governmental proceedings are accurate and fairly present the information required to be shown: it being understood that such counsel need express no ~~belief regarding~~ opinion as to the financial ~~statements and related schedules and~~ statements, other financial ~~or statistical~~ data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus ~~that would give them actual current knowledge~~ or the Statement of Eligibility of the ~~existence or absence of such matter~~ Bond Trustee on Form T-1 contained in ~~question. In rendering such opinion, counsel for~~ the ~~Company may rely, to~~ Registration Statement; (6) The statements in the ~~extent counsel deems such reliance proper, as to matters of fact upon certificates of officers~~ Prospectus under the Captions "Description of the ~~Company~~ Class A Bonds" and ~~any governmental officials~~"Description of the Transaction Documents", insofar as they purport to summarize certain terms of the Bonds and ~~copies~~ the applicable Basic Documents, constitute a fair summary of ~~all such certificates shall~~ the provisions purported to be ~~furnished~~ summarized; and (7) This Agreement represents a legal valid and binding obligation of each of AMS, the Trust Manager and the Issuer Trustee, subject to ~~the Representatives and for the Underwriters on or before each Closing Date~~customary exceptions. (eh) ~~The Representatives shall have received an opinion of Michael Best & Friedrich LLP~~Mayer, Brown, ▇▇▇~~▇▇▇~~▇ ~~▇▇▇~~ & Maw, United States federal income tax counsel for the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, AMS Parties and the ~~Company~~ Issuer Trustee, shall have furnished to ~~such counsel such documents~~ the Representative their written opinion, dated the Closing Date, in form and ~~shall have exhibited~~ substance satisfactory to ~~them such papers and records as such counsel reasonably request for~~ the ~~purpose of enabling them to pass upon such matters~~Representative. (fi) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇~~sel~~ ▇▇, Australian counsel for the Issuer Trustee, shall have furnished to the Representative their written opinion, dated the Closing Date, in form and ~~Secretary~~substance satisfactory to the Representative, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. (j) ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel for the Bond Trustee, shall have furnished to the Representative their written opinion, dated the Closing Date, in form and substance satisfactory to the Representative, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. (k) Counsel to the Interest Rate Swaps Counterparty and the Currency Swap Counterparty shall have furnished to the Representative and the AMS Parties their written opinion in form and substance satisfactory to the Representative. (l) Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, LLP, United States counsel to the Underwriters, shall have furnished to the Representative their written opinion, dated the Closing Date, in form and substance satisfactory to the Representative, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. (m) The Representative shall have received a letter or letters from each counsel delivering any written opinion to any Rating Agency in connection with the transaction described herein which is not otherwise described in this Agreement allowing the Representative to rely on such opinion as if it were addressed to the Representative. (n) At the Closing Date, the Class A Bonds shall have been rated "AAA" by Standard & Poor's (Australia) Pty Limited ("S&P") and Fitch Australia Pty Limited ("Fitch") and "Aaa" by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's" and together with Standard and Poor's and Fitch, the "Rating Agencies"), as evidenced by letters from the Rating Agencies. (o) The execution and delivery by all parties thereto of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at Basic Documents on or prior to the ~~date of such certificate;~~Closing Date. (iip) ~~The Commission has not issued an order preventing~~ On or ~~suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and~~ prior to the ~~knowledge of~~ Closing Date the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement AMS Parties and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment Issuer Trustee shall have furnished to the ~~Registration Statement that has not been so set fo~~Representative such further certificates and documents as the Representative shall reasonably request.

Appears in 1 contract

Sources: Underwriting Agreement (Australian Securitisation Management Pty LTD)

Conditions of the Obligations of the Underwriters. The ------------------------------------------------- obligations of the several Underwriters ~~under this Agreement~~ to purchase and pay for the Firm Common Shares on the First Closing Date and the Optional Common Shares on the Second Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders herein set forth as of the date hereof and as of ~~each~~ the First Closing Date or the Second Closing Date, as the case may be, to the accuracy of the statements of ~~the Company's~~ Company officers made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company and the Selling Stockholders of ~~its~~ their respective obligations hereunder, and to the following additional conditions~~, unless waived in writing by the Representatives~~: (a) The Registration Statement shall have ~~been declared~~ become effective ~~by the Commission~~ not later than ~~5:30 p.m.~~5:00 P.M. (or, in the case of a registration statement filed pursuant to Rule 462(b) of the Rules and Regulations relating to the Common Shares, not later than 10:00 P.M.), Washington, D.C. ~~time~~Time, on the date of this Agreement, or at such later time ~~and date~~ as shall have been consented to by ~~the Representatives, which consent shall be deemed to have been given~~ you; if the ~~Registration Statement~~ filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b) of the Rules and Regulations, the Prospectus shall have been ~~declared effective on or before the date and time requested~~ filed in the ~~acceleration request submitted on behalf~~ manner and within the time period required by Rule 424(b) of the ~~Representatives pursuant~~ Rules and Regulations; and prior to ~~Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made;~~ such Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission~~ and no proceedings for that purpose shall have been instituted or ~~any state securities commission nor~~shall be pending or, to the knowledge of the ~~Company~~Company or you, shall ~~any proceedings for that purpose have been instituted or threatened~~be contemplated by the Commission; and any request of the Commission ~~or any state securities commission~~ for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to ~~the reasonable satisfaction of the Representatives acting in good faith~~your satisfaction. (b) ~~Subsequent to~~ You shall be satisfied that since the ~~execution~~ respective dates as of ~~this Agreement,~~ which information is given in the Registration Statement and Prospectus, (i) there shall not have ~~occurred~~ been any change in the capital stock other than pursuant to the exercise of outstanding options and warrants disclosed in the Prospectus of the Company or ~~development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions~~ any material change in the indebtedness (other than in the ordinary course of business) of the Company, ~~and~~ (ii) except as set forth or contemplated by the ~~Company~~ Registration Statement or the Prospectus, no material verbal or written agreement or other transaction shall have been entered into by the Company, which is not ~~have sustained any~~ in the ordinary course of business or which could result in a material reduction in the future earnings of the Company, (iii) no loss or ~~interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity~~ damage (whether or not insured) to the property of the Company shall have been sustained which materially and adversely affects the condition (financial or ~~from any court~~ otherwise), business or results of operations of the Company or might reasonably be expected to result in a material adverse change in the prospects of the Company, (iv) no legal or governmental action, ~~order~~ suit or ~~decree having a Material Adverse Effect,~~ proceeding affecting the ~~effect of~~ Company which on is material to the ~~Company, in~~ Company or which affects or may affect the transactions contemplated by this Agreement shall have been instituted or threatened and (v) there shall not have been any ~~such case described in clause (i) or (ii) above, is~~ material change in the ~~reasonable and good faith opinion~~ condition (financial or otherwise), business, management or results of operations of the Company or any change that might reasonably be expected to result in a material adverse change in the prospects of the Company which makes it impractical or inadvisable in the judgment of the Representatives ~~so material and adverse as to make it impracticable or inadvisable~~ to proceed with the public offering or purchase the ~~delivery of the~~ Common Shares ~~on the terms and in the manner~~ as contemplated ~~in the Registration Statement and the Prospectus~~hereby. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives There shall have ~~received opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company (as~~ been furnished to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representativesyou, as ~~the representatives~~ Representatives of the Underwriters, on each Closing Date, in form and substance satisfactory to you, except as otherwise expressly provided below: (i) An opinion of Fenwick & West LLP, counsel for the Company and the Selling Stockholders, addressed to the Underwriters and dated the First Closing ~~Date~~ Date, or the Second Closing Date, as the case may be, to the effect that: (i1) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of ~~Delaware~~its jurisdiction of incorporation, ~~with~~ is duly qualified to do business as a foreign corporation and is in good standing in all other jurisdictions where the ownership or leasing of properties or the conduct of its business requires such qualification, except as described in the Prospectus and except for jurisdictions in which the failure to so qualify would not have a material adverse effect on the Company, and has full corporate power and corporate authority to ~~own, lease and operate~~ own its properties and conduct its business as ~~presently conducted and as~~ described in ~~the Prospectus and~~ the Registration Statement; (ii2) The ~~authorized~~ authorized, issued and outstanding capital stock of the Company ~~consists~~ as of ~~60,000,000~~ September 30, 1997 and subject to the assumptions set forth in the Prospectus under the heading "Capitalization" is as set forth under the caption "Capitalization" in the Prospectus and conforms as of the date set forth therein and as of the applicable Closing Date as to legal matters in all material respects to the description thereof contained in the Registration Statement and the Prospectus under the caption "Description of Capital Stock"; all necessary and proper corporate proceedings have been taken in order to authorize validly such authorized Common Stock; all outstanding shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder Stock have been duly ~~authorized~~ and validly issued, are fully paid and ~~nonassessable (except~~nonassessable, to have been issued in compliance with the ~~extent applicable, as otherwise provided in Section 180.0622(2)(b)~~ registration and qualification requirements of ~~the Wisconsin Business Corporation Law, as judicially interpreted)~~federal and state securities laws, and, to such counsel's ~~knowledge, there are no preemptive, preferential or, except as described~~ knowledge were not issued in ~~the Prospectus,~~ violation of or subject to any preemptive rights or other rights to subscribe for or purchase any ~~shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights~~securities; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v3) The certificates ~~for~~ evidencing the Common Shares to be delivered hereunder ~~conform~~ are in ~~all material respects to the requirements of the~~ due and proper form under Delaware ~~General Corporation Law and the rules and regulations of the New York Stock Exchange;~~ law, and when duly countersigned by the Company's transfer ~~agent~~agent and registrar, and delivered to ~~the Representatives~~ you or upon ~~the~~ your order ~~of the Representatives~~ against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Common Shares represented thereby will be duly authorized and validly issued, fully paid and ~~nonassessable (except~~nonassessable, to such counsel's knowledge will not have been issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities and will conform in all material respects to the ~~extent applicable, as otherwise provided~~ description thereof contained in ~~Section 180.0622(2)(b) of~~ the ~~Wisconsin Business Corporation Law, as judicially interpreted)~~Prospectus; (vi4) ~~The~~ Except as disclosed in or specifically contemplated by the Prospectus, to such counsel's knowledge, there are no outstanding options, warrants or other rights calling for the issuance of, and no commitments, plans or arrangements to issue, any shares of capital stock of the Company or any security convertible into or exchangeable for capital stock of the Company; (a) Based solely upon oral advice from the staff of the Commission, the Registration Statement has become effective under the ~~Act~~ Act, and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement or preventing the use of the Prospectus has been issued and no proceedings for that purpose have been instituted or are ~~threatened~~ pending or contemplated by the Commission; ~~the Registration Statement and~~ any required filing of the Prospectus and any supplement thereto pursuant to Rule 424(b) of the Rules and Regulations has been made in the manner and within the time period required by such Rule 424(b); (b) The Registration Statement, the Prospectus and each amendment or supplement ~~thereto, including any document incorporated by reference into the Registration Statement~~ thereto (except for the financial ~~statements and schedules and other statistical or~~ statements, financial data and schedule included ~~therein,~~ therein as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the ~~Act;~~ Act and the ~~conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied~~Rules and Regulations; (~~vii~~c) To such counsel's knowledge, there are no franchises, leases, contracts, agreements or documents of a character required to be disclosed in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not disclosed or filed, as required; (d) To such counsel's knowledge, there are no legal or governmental actions, suits or proceedings pending or threatened ~~legal or governmental proceedings that~~ against the Company which are required to be described in the ~~Registration Statement or the~~ Prospectus ~~that~~ which are not ~~so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be~~ described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as ~~an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference~~ required;; and (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix6) The Company has ~~full~~ the corporate power and corporate authority to enter into this Agreement and ~~perform~~ to sell and deliver the Common Shares to be sold by it to the several Underwriters; this ~~Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have~~ Agreement has been duly and validly authorized ~~by the Company~~ by all necessary corporate action by the Company's board of directors and ~~this Agreement~~ stockholders, has been duly and validly executed and delivered by and on behalf of the Company, and is a ~~legal,~~ valid and binding agreement of ~~the Company enforceable against~~ the Company in accordance with its terms, except ~~that~~ as enforceability may be limited by general equitable principles, bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally and except as to those provisions relating to indemnity or contribution ~~hereunder~~ for liabilities arising under the Act as to which no opinion need be expressed; and to such counsel's knowledge no approval, authorization, order, consent, registration, filing, qualification, license or permit of or with any court, regulatory, administrative or other governmental body or agency is required for the execution and delivery of this Agreement by the Company or the consummation of the transactions set forth in this Agreement, except such as have been obtained and are in full force and effect under the Act and such as may be required under applicable Blue Sky laws in connection with the purchase and distribution of the Common Shares by the Underwriters and the clearance of such offering with the NASD; (7) The execution and performance of this Agreement and the consummation of the transactions herein set forth will not conflict with, result in the breach of, or constitute, either by itself or upon notice or the passage of time or both, a default under, any agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument known to such counsel to which the Company is a party or by which the Company or any of its property may be bound or affected which is material to the Company, or violate any of the provisions of the certificate of incorporation or bylaws or other organizational documents of the Company, or, to such counsel's knowledge, violate any statute, judgment, decree, order, rule or regulation of any court or governmental body having jurisdiction over the Company or any of its property; (8) To such counsel's knowledge, the Company is not in violation of its certificate of incorporation or bylaws, or other organizational documents, or in breach of or default with respect to any provision of any agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit or other instrument to which the Company is a party or by which it or any of its properties may be bound or affected, except where such default would not materially adversely affect the Company; and, to such counsel's knowledge, the Company is in compliance with all laws, rules, regulations, judgments, decrees, orders and statutes of any court or jurisdiction to which it is subject, except where noncompliance would not materially adversely affect the Company and except as disclosed in the Prospectus; (9) To such counsel's knowledge, no holders of securities of the Company have rights which have not been waived to the registration of shares of Common Stock or other securities, because of the filing of the Registration Statement by the Company or the offering contemplated hereby; (10) To such counsel's knowledge, the Underwriting Agreement has been duly authorized, executed and delivered by or on behalf of, and is a valid and binding agreement of, each Selling Stockholder, enforceable in accordance with its terms, except as rights to indemnification thereunder may be limited by applicable law and except as ~~to enforceability of this Agreement~~ the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights ~~generally~~generally or by general equitable principles. (11) To such counsel's knowledge, the execution and delivery by each Selling Stockholder of, and the performance by ~~equitable principles limiting~~ each Selling Stockholder of its obligations under, the ~~right to specific performance~~ Underwriting Agreement and its Custody Agreement and its Power of Attorney will not contravene or conflict with, result in a breach of, or constitute a default under, the charter or by-laws, partnership agreement, trust agreement or other ~~equitable relief; and~~organizational documents, as the case may be, of any Selling Stockholder, or, to the best of such counsel's knowledge, violate or contravene any provision of applicable law or regulation, or violate, result in a breach of or constitute a default under the terms of any other agreement or instrument to which any Selling Stockholder is a party or by which it is bound, or any judgment, order or decree applicable to any Selling Stockholder of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over any Selling Stockholder. (12) To such counsel's knowledge, each Selling Stockholder has good and valid title to all of the Common Shares which may be sold by such Selling Stockholder under the Underwriting Agreement and has the legal right and power, and all authorizations and approvals required under its charter and by- laws, partnership agreement, trust agreement or other organizational documents, as the case may be, to enter into the Underwriting Agreement and its Custody Agreement and its Power of Attorney, to sell, transfer and deliver all of the Common Shares which may sold by such Selling Stockholder under the Underwriting Agreement and to comply with its other obligations under the Underwriting Agreement, its Custody Agreement and its Power of Attorney. (13) To such counsel's knowledge, each of the Custody Agreement and Power of Attorney of each Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and is a valid and binding agreement of such Selling Stockholder, enforceable in accordance with its terms, except as rights to indemnification thereunder may be limited by applicable law and except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting creditors' rights generally or by general equitable principles. (14) To such counsel's knowledge, assuming that the Underwriters purchase the Common Shares which are sold by such Selling Stockholder pursuant to the Underwriting Agreement for value, in good faith and without notice of any adverse claim, the delivery of such Common Shares pursuant to the Underwriting Agreement will pass good and valid title to such Common Shares, free and clear of any security interest, mortgage, pledge, lieu encumbrance or other claim. (15) To such counsel's knowledge, no consent, approval, authorization or other order of, or ~~decree of~~ registration or filing with, any ~~court, regulatory~~ court or governmental ~~body, arbitrator, administrative agency~~ authority or ~~other instrumentality of the United States having jurisdiction over the Company~~agency, is required for the ~~execution and delivery of this Agreement or the~~ consummation by such Selling Stockholder of the transactions contemplated ~~by this Agreement (~~in the Underwriting Agreement, except ~~for compliance with~~ as required under the ~~Act, the Exchange~~ Securities Act, applicable ~~Blue Sky Laws~~ state securities or blue sky laws, and ~~the clearance of the underwriting arrangements with~~ from the NASD~~); (x) The execution~~. In rendering such opinion, ~~delivery and performance~~ such counsel may rely, as to matters of ~~this Agreement by the Company will not: (A) violate any provisions~~ local law, on opinions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is boundlocal counsel, and ~~which is filed or incorporated by reference~~ as ~~an exhibit~~ to ~~the Registration Statement; or (C) violate any statute~~matters of fact, ~~ordinance, order, rule, decree or regulation~~ on certificates of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities officers of the Company, the Selling Stockholders and of governmental officials, in which case their opinion is to state that they are so doing and that the Underwriters are justified in relying on such opinions or ~~securities that~~ certificates and copies of said opinions or certificates are ~~convertible or exchangeable into Common Stock or other securities of the Company, that have rights~~ to be attached to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amendedopinion. Such counsel shall also state that they have participated in conferences with ~~officers~~ officials and other representatives of the Company, ~~representatives of auditors for~~ the ~~Company and representatives of~~ Representatives, counsel to the Underwriters and ~~their counsel during~~ the independent certified public accountants of the Company, at which such conferences the ~~content~~ contents of the Registration Statement and ~~the~~ Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein)discussed. ~~To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "~~In addition to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinionmatters set forth above, counsel ~~for~~ rendering the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates foregoing opinion shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, also include a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, statement to the effect that~~: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate~~, ~~and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by~~ although it ~~at or prior to the date of such certificate; (ii) The Commission~~ has not ~~issued an order preventing~~ independently verified the accuracy or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set focompleteness o

Appears in 1 contract

Sources: Underwriting Agreement (Onsale Inc)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall be~~ to purchase and pay for the Firm Shares on the Closing Date and the Additional Shares on any Option Closing Date are subject to the ~~accuracy~~ fulfillment of each of the ~~representations~~ following conditions on or prior to the Closing Date and ~~warranties on the part of the Company herein set forth as of the date hereof and as of~~ each Option Closing Date, to the accuracy of the statements of the Company's officers made pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder, and to the following additional conditions, unless waived in writing by the Representatives: (a) All the representations and warranties of the Company and the Selling Stockholders contained in this Agreement and in any certificate delivered hereunder shall be true and correct on the Closing Date and each Option Closing Date with the same force and effect as if made on and as of the Closing Date or Option Closing Date, as applicable. The Company and the Selling Stockholders shall not have failed at or prior to the Closing Date or Option Closing Date, as applicable, to perform or comply in all respects with any of the agreements herein contained and required to be performed or complied with by the Company or the Selling Stockholders at or prior to the Closing Date. (b) If the Registration Statement is not effective at the time of the execution and delivery of this Agreement, the Registration Statement shall have ~~been declared~~ become effective by (or, if a post-effective amendment is required to be filed pursuant to Rule 430A under the ~~Commission~~ Act, such post-effective amendment shall have become effective) not later than ~~5:30 p.m.~~9:30 A.M., ~~Washington, D.C.~~ New York City time, on the date of this ~~Agreement,~~ Agreement or such later time ~~and date~~ as ~~shall have been consented to by the Representatives~~you may approve in writing or, ~~which consent shall be deemed to have been given~~ if the Registration Statement has been declared effective prior to the execution and delivery hereof in reliance on Rule 430A, the Prospectus shall have been ~~declared effective on or before~~ filed as required hereby, if necessary; and at the ~~date~~ Closing Date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; each applicable Option Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor, to the knowledge of the Company, shall any~~ and no proceedings for that purpose shall have been ~~instituted~~ commenced or ~~threatened~~shall be pending before or, to the best knowledge of the Underwriters, the Company or the Selling Stockholders, threatened by the Commission; ~~and any~~ every request for additional information on the part of the Commission ~~or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise,~~ shall have been complied with to the ~~reasonable satisfaction of~~ Underwriters' satisfaction; no stop order suspending the Representatives acting in good faith. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery sale of the Shares ~~on the terms~~ in any jurisdiction referred to in Section 5(g) shall have been issued and ~~in the manner contemplated in the Registration Statement and the Prospectus~~no proceeding for that purpose shall have been commenced or shall be pending or threatened. (c) The ~~Representatives~~ Shares shall ~~not~~ have been qualified for sale under the Blue Sky laws of such states as shall have been specified by the Representatives. (d) The legality and sufficiency of the authorization, issuance and sale or transfer and sale of the Shares hereunder, the validity and form of the certificates representing the Shares, the execution and delivery of this Agreement and all corporate proceedings and other legal matters incident thereto, and the form of the Registration Statement and the Prospectus (except financial statements) shall have been approved by counsel for the Underwriters exercising reasonable judgment, and no Underwriter shall have advised the Company that the Registration Statement or ~~Prospectus~~ the Prospectus, or any amendment or supplement thereto, contains an untrue statement of ~~fact that~~material fact, ~~in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material~~ or omits to state a fact ~~that,~~ that in ~~the reasonable and good faith~~ your opinion ~~of the Representatives or such counsel,~~ is material and is required to be stated therein or is necessary to make the statements therein not misleading. (de) ~~The Representatives~~ Subsequent to the execution and delivery of this Agreement, there shall not have occurred any material change, or any material development involving a prospective change, in or affecting particularly the business or properties of the Company or any Subsidiary, whether or not arising in the ordinary course of business, that, in the judgment of the Representatives, makes it impractical or inadvisable to proceed with the public offering or purchase of the Shares as contemplated hereby. (f) You shall have received ~~opinions~~ an agreement from each of ~~Foley & Lardner~~the directors, ~~special couns▇▇ ▇▇r~~ executive officers of the ~~Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv))~~Company, and each of the ~~Vice President, General Counsel and Secretary~~ employees of the Company as may be specified by the Underwriters, who are not Selling Stockholders (as the "Additional Shareholders"), whereby each such director, executive officer and employee agrees to be bound by an agreement to the ~~matters~~ same effect as the covenants set forth in ~~subsections~~ the last paragraph of Section 3 of this Agreement (~~iii~~the "Lock-Up Agreements"), . (~~iv),~~ g) You shall have received an opinion (~~v), (vii), (x), (xi), (xii~~satisfactory to you and your counsel) ~~and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and~~ dated the ~~First~~ Closing Date or the ~~Second~~ Option Closing Date, as the case may be, ~~to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws~~ of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇~~▇ the~~ ▇▇▇▇▇▇▇~~▇ters~~▇ LLP, counsel for the Company and the Selling Stockholders, in form and substance satisfactory to the Representatives and attached hereto as Exhibit B; and you shall have received an opinion (satisfactory to you and your counsel) dated the ~~First~~ Closing Date or the ~~Second~~ Option Closing Date, as the case may be, ~~with respect~~ of Riker, Danzig, special counsel for the Company, in form and substance satisfactory to the ~~sale of the Shares hereunder, the Registration Statement~~ Representatives and ~~other related matters~~ attached hereto as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters.Exhibit C. (fh) ~~The Representatives~~ You shall have received ~~on each Closing Date~~an opinion of ▇▇▇▇▇▇, ~~a certificate of Kenneth W. Krueger, Senior Vic~~▇▇▇▇ ▇& ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, dated the Closing Date or the Option Closing Date, as the case may be, in form and substance satisfactory to the Representatives. (i) You shall have received, in connection with the execution of this Agreement and on the Closing Date and each Option Closing Date, a "cold comfort" letter from BDO ▇▇▇▇▇▇▇, LLP, dated as of each such date in form and substance satisfactory to you with respect to the financial statements and certain financial information and data contained in the Registration Statement and the Prospectus. (j) You shall have received from the Company a certificate, signed by ▇▇▇▇▇▇ ▇▇~~ief Financial Officer,~~ ▇▇▇▇ and ~~W. David Romoser, Vice President,~~ ▇▇▇▇▇▇▇ ▇▇▇▇~~sel~~ ▇▇▇ in their capacities as the Chief Executive Officer, President and ~~Secretary,~~ Treasurer and the Chief Operating Officer of the Company, ~~in their respective capacities~~ respectively, addressed to the Underwriters and dated the Closing Date or Option Closing Date, as ~~such,~~ applicable to the effect that: (i) ~~The~~ such officer does not know of any Proceedings instituted, threatened or contemplated against the Company or any Subsidiary of a character required to be disclosed in the Prospectus that are not so disclosed; such officer does not know of any material contract required to be filed as an exhibit to the Registration Statement which is not so filed; (ii) such officer has carefully examined the Registration Statement and the Prospectus and all amendments or supplements thereto and, in such officer's opinion, such Registration Statement or such amendment as of its effective date and as of the Closing Date, and the Prospectus or such supplement as of its date and as of the Closing Date, did not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading and, in such officer's opinion, since the effective date of the Registration Statement, no event has occurred or information become known that should have been set forth in an amendment to the Registration Statement or a supplement to the Prospectus which has not been so set forth in such amendment or supplement; (iii) the representations and warranties of the Company set forth in Section ~~2 hereof~~ 6(a) of this Agreement are true and correct as of the date of this Agreement and as of the ~~date of such certificate~~Closing Date or the Option Closing Date, as the case may be, and the Company has complied ~~in all material respects~~ with all the agreements and satisfied all the conditions on its part to be performed or satisfied ~~by it~~ at or prior to ~~the date of~~ such ~~certificate;~~Closing Date; and (iiiv) ~~The~~ the Commission has not issued an order preventing or suspending the use of the Prospectus or any ~~Preliminary Prospectus~~ preliminary prospectus filed as a part of the Registration Statement or any amendment ~~or supplement~~ thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; ~~and~~ and, to the best knowledge of the respective ~~signatories~~signers, no proceedings for that purpose have been ~~initiated~~ instituted or are pending or contemplated under the ~~Act or under the Blue Sky Laws of any jurisdiction; (iii) Each~~ Act. The delivery of the ~~respective signatories has examined~~ certificate provided for in this subparagraph shall be and constitute a representation and warranty of the ~~Registration Statement and~~ Company as to the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be facts set forth in ~~an amended~~ said certificate. (k) You shall have received a certificate of each Selling Stockholder dated the Closing Date or ~~supplemented prospectus or in an amendment~~ the Option Closing Date, as the case may be, to the ~~Registration Statement~~ effect that the representations and warranties of such Selling Stockholder set forth in Sections 6(a) and 6(b) of this Agreement are true and correct as of such date and the Selling Stockholder has ~~not been so set fo~~complied with all the agreements and satisfied all the conditions on the part of such Selling Stockholder to be performed or satisfied at or prior to such date. (1) You and ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, shall have received on or before the Closing Date or the Option Closing Date, as the case may be, such further documents, opinions, certificates and schedules or instruments relating to the business, corporate, legal and financial affairs of the Company as you and they shall have reasonably requested from the Company.

Appears in 1 contract

Sources: Underwriting Agreement (Us Home & Garden Inc)

Conditions of the Obligations of the Underwriters. The obligations of the ~~several~~ Underwriters ~~under this Agreement shall~~ to purchase and pay for the Class A Notes will be subject to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of the date hereof and as of each Closing Date~~Seller herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Seller made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Seller of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The Registration Statement shall have ~~been declared~~ become effective by prior to the ~~Commission not later than 5:30 p.m.~~Execution Time, ~~Washington~~and prior to the Closing Date, D.C. time, on the date of this Agreement, or such later time and date as shall have been consented to by the Representatives, which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Seller or the Representative, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or by any authority administering any state securities ~~commission for inclusion of additional information in the Registration Statement,~~ or ~~otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faith~~blue sky law. (b) The Prospectus and any supplements thereto shall have been filed (if required) with the Commission in accordance with the Rules and Regulations and Section 5(a) hereof. (c) On or prior to the date of this Agreement and on or prior to the Closing Date, the Representative shall have received a letter or letters, dated as of the date of this Agreement and as of the Closing Date, respectively, of Price Waterhouse, independent public accountants, substantially in the form of the drafts to which the Representative has previously agreed and otherwise in form and substance satisfactory to the Representative and its counsel. (d) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred (i) any ~~change or development involving~~change, or ~~which could be reasonably expected to involve~~any development involving a prospective change, ~~a Material Adverse Effect~~in or affecting particularly the business or properties of the Trust, ~~whether~~ the Seller or ~~not arising from transactions~~ the Servicer which, in the ~~ordinary course~~ judgment of ~~business~~the Underwriters, ~~and~~ materially impairs the investment quality of the Notes or makes it impractical or inadvisable to market the Notes; (ii) any suspension or limitation of trading in securities generally on the ~~Company shall not have sustained~~ New York Stock Exchange, or any ~~loss~~ setting of minimum prices for trading on such exchange; (iii) any suspension of trading of any securities of Caterpillar or ~~interference from~~ CFSC on any ~~labor dispute~~exchange or in the over-the-counter market; (iv) any banking moratorium declared by Federal, ~~strike~~Delaware or New York authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, ~~fire~~any declaration of war by Congress, ~~flood~~or any other substantial national or international calamity or emergency if, ~~windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect~~in the judgment of the Underwriters, the effect of ~~which on the Company, in~~ any such ~~case described in clause (i)~~ outbreak, escalation, declaration, calamity or ~~(ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make~~ emergency makes it ~~impracticable~~ impractical or inadvisable to proceed with ~~the public offering or the delivery~~ completion of the ~~Shares on~~ sale of and payment for the ~~terms and in the manner contemplated in the Registration Statement and the Prospectus~~Notes. (ce) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives Representative shall have received opinions of ~~Foley & Lardner, special couns~~▇▇▇▇ ▇. ▇~~r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President~~▇▇▇▇, General Counsel of CFSC, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP and ~~Secretary of~~ Tuke, ▇▇▇▇ & ▇▇▇▇▇▇▇, counsel to CFSC, the ~~Company (as~~ Seller and the Trust and such other counsel acceptable to the ~~matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii)~~ Underwriters addressed to the ~~Representatives~~Representative, as the ~~representatives of~~ Owner Trustee and the ~~Underwriters~~Indenture Trustee, ~~and~~ dated the ~~First~~ Closing Date or and satisfactory in form and substance to the ~~Second Closing Date~~Representative and its counsel, ~~as the case may be,~~ substantially to the effect that: (i) ~~The Company~~ CFSC has been duly incorporated and is validly existing as a corporation in good standing under the laws of ~~Delaware,~~ the State of Delaware with full corporate power and authority to ~~own, lease and operate~~ own its properties and conduct its ~~business~~ business, as presently owned and conducted by it, and ~~as described in~~ to enter into and perform its obligations under the ~~Prospectus~~ Underwriting Agreements, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the ~~Registration Statement;~~Custodial Agreement and had at all times, and now has, the power, authority and legal right to acquire, own and sell the Receivables. (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have Seller has been duly ~~authorized~~ incorporated and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing ~~or active status~~ under the laws of ~~Tennessee,~~ the State of Nevada with full corporate power and authority to ~~own, lease and operate~~ own its properties and to conduct its ~~business~~ business, as presently owned and conducted by it, and ~~as described in~~ to enter into and perform its obligations under the ~~Prospectus~~ Underwriting Agreements, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the ~~Registration Statement; to such counsel's knowledge~~Custodial Agreement and had at all times, and now has, the ~~Company owns directly~~ power, authority and legal right to acquire, own and sell the Receivables. (iii) CFSC is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals in each jurisdiction in which failure to qualify or ~~indirectly~~ to obtain such license or approval would render any Receivable unenforceable by the Seller, the Owner Trustee or the Indenture Trustee, except as may be required under state securities or Blue Sky laws of various jurisdictions. (iv) The Seller is duly qualified to do business and ~~beneficially~~ is in good standing, and has obtained all necessary licenses and approvals in each jurisdiction in which failure to qualify or to obtain such license or approval would have a material adverse effect on the Receivables as a whole, except as may be required under state securities or Blue Sky laws of ~~the issued and outstanding capital stock of the Significant Subsidiary;~~various jurisdictions. (v) The ~~certificates for~~ direction by the ~~Shares to be delivered hereunder conform in all material respects~~ Seller to the ~~requirements of~~ Owner Trustee to authenticate the ~~Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when~~ Certificates has been duly ~~countersigned~~ authorized by the ~~Company's transfer agent~~Seller and, when the Certificates have been duly executed, authenticated and delivered to by the ~~Representatives or upon the order of the Representatives against payment of the agreed consideration therefor~~ Owner Trustee in accordance with the ~~provisions of this Agreement~~Trust Agreement and delivered to and paid for by the Seller, ~~the Shares represented thereby~~ will be ~~duly authorized and validly~~ legally issued, fully paid and nonassessable ~~(except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b)~~ obligations of the ~~Wisconsin Business Corporation Law, as judicially interpreted);~~Trust. (vi) The ~~Registration Statement~~ direction by CFSC to the Indenture Trustee to authenticate the Notes has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by CFSC, and, when the ~~Company by all necessary corporate action and this Agreement has~~ Notes have been duly executed and delivered by ~~and on behalf of~~ the ~~Company~~Owner Trustee, ~~and is a legal, valid and binding agreement of~~ authenticated by the ~~Company enforceable against the Company~~ Indenture Trustee in accordance with ~~its terms~~the Indenture and delivered and paid for pursuant to the Note Underwriting Agreement, the Notes will be duly issued and entitled to the benefits and security afforded by the Indenture, except ~~that rights to indemnity or contribution hereunder~~ (x) the enforceability thereof may be ~~limited by applicable law and except as~~ subject to ~~enforceability of this Agreement may be limited by~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors' rights ~~generally~~and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) Each of the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement and the Custodial Agreement has been duly authorized, executed and delivered by the Seller, and ~~by equitable principles limiting~~ is a legal, valid and binding obligation of the ~~right~~ Seller enforceable against the Seller in accordance with its terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (viii) The Underwriting Agreements have been duly authorized, executed and delivered by each of the Seller and CFSC. (ix) Each of the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Custodial Agreement has been duly authorized, executed and delivered by CFSC and is a legal, valid and binding obligation of CFSC enforceable against CFSC in accordance with its terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights and (y) the remedy of specific performance and injunctive and other forms of equitable ~~relief; and,~~ relief may be subject to ~~such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality~~ equitable defenses and to the discretion of the ~~United States having jurisdiction over~~ court before which any proceeding therefor may be brought. (x) Neither the ~~Company~~transfer of the Receivables from CFSC to the Seller, ~~is required for~~ nor the transfer of the Receivables from the Seller to the Trust, nor the assignment of the Trust Estate to the Trust, nor the assignment by the Seller of its right, title and interest in the Purchase Agreement to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of ~~this~~ the Underwriting Agreements, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement or the Custodial Agreement by the Seller, nor the execution of the Underwriting Agreements, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement or the Custodial Agreement by CFSC, nor the consummation of ~~the~~ any transactions contemplated ~~by this~~ in the Underwriting Agreements, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement, the Sale and Servicing Agreement or the Custodial Agreement (~~except~~ such agreements, excluding the Underwriting Agreements, being for ~~compliance with the Act~~purposes of this clause (e), collectively, the ~~Exchange Act~~"BASIC DOCUMENTS"), ~~applicable Blue Sky Laws and~~ nor the ~~clearance~~ fulfillment of the ~~underwriting arrangements with~~ terms thereof by CFSC, the ~~NASD);~~ Seller or the Trust, as the case may be, will (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions ofconflict with, or result in ~~the~~ a breach, ~~modification~~ violation or ~~termination~~ acceleration of, or constitute a default under, any ~~agreement~~term or provision of the certificate of incorporation or by-laws of CFSC or the Seller or, ~~lease~~to the best of such counsel's knowledge after due inquiry, ~~franchise, license, indenture, permit, mortgage, deed~~ of ~~trust, other evidence of indebtedness~~ any indenture or other agreement or instrument to which ~~the Company~~ CFSC or the ~~Significant Subsidiary~~ Seller is a party or by which ~~the Company or the Significant Subsidiary, or any~~ either of ~~their respective owned or leased property~~ them is bound, ~~and which is filed or incorporated by reference as an exhibit to the Registration Statement;~~ or (Cy) ~~violate~~ result in a violation of or contravene the terms of any statute, ~~ordinance, order, rule, decree~~ order or regulation applicable to CFSC or the Seller of any court, regulatory ~~or governmental~~ body~~, arbitrator~~, administrative agency or ~~other instrumentality of the United States~~ governmental body having jurisdiction over ~~the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws);~~either of them. (xi) To There are no actions, proceedings or investigations pending or, to the best of such counsel's knowledge, ~~there are no holders of Common Stock~~ threatened before any court, administrative agency, or other ~~securities~~ tribunal (1) asserting the invalidity of the ~~Company~~Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, or ~~securities~~ (3) that ~~are convertible~~ could reasonably be expected to materially and adversely affect the performance (A) by CFSC of its obligations under, or ~~exchangeable into Common Stock~~ the validity or ~~other securities~~ enforceability of, the Underwriting Agreements, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement or the Custodial Agreement, (B) by the Seller of its obligations under, or the ~~Company~~validity or enforceability of, ~~that have rights to~~ the ~~registration~~ Underwriting Agreements, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement or the Custodial Agreement, or (C) by the Servicer of ~~such securities under~~ its obligations under, or the ~~Act~~ validity or ~~any Blue Sky Laws;~~enforceability of, the Sale and Servicing Agreement. (xii) ~~The Shares are authorized for trading~~ To the best knowledge of such counsel, no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any agreement to which CFSC or the Seller is a party or by which either of them is bound, which default is or would have a material adverse effect on the ~~New York Stock Exchange;~~financial condition, earnings, business or properties of CFSC and its subsidiaries, taken as a whole. (xiii) ~~To such counsel's knowledge~~The Assignment dated as of the Closing Date from CFSC to the Seller has been duly authorized, ~~neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and~~executed and delivered by CFSC. (xiv) ~~The Company is not an "investment company," as such term is defined~~ Should CFSC become the debtor in a case under the Bankruptcy Code, if the matter were properly briefed and presented to a court, the court should hold that (1) the transfer of the Receivables by CFSC to the Seller in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed manner set forth in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that Purchase Agreement would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received constitute an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the absolute sale of the ~~Shares hereunder~~Receivables, rather than a borrowing by CFSC secured by the ~~Registration Statement and other related matters as the Representatives may reasonably require~~Receivables, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set fothus

Appears in 1 contract

Sources: Class a Note Underwriting Agreement (Caterpillar Financial Funding Corp)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the [Underwritten] Notes will be subject to the accuracy of the representations and warranties on the part of the ~~Company~~ Seller and the Servicer herein ~~set forth as of~~ on the date hereof and ~~as of each~~ at the Closing Date, to the accuracy of the statements of officers of the ~~Company's officers~~ Seller and the Servicer made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Seller and the Servicer of ~~its~~ their respective obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) ~~The~~ At the time this Agreement is executed and delivered by the Seller and at the Closing Date, a nationally recognized accounting firm who are independent public accountants shall have furnished to the Representative letters dated respectively as of the date of this Agreement and as of the Closing Date substantially in the forms of the drafts to which the Representative previously agreed. (b) If the time of effectiveness of the Initial Registration Statement is not prior to the execution and delivery of this Agreement, such time of effectiveness shall have ~~been declared effective by the Commission~~ occurred not later than ~~5:30~~ [ ] [a.m.] [p.m.], ~~Washington, D.C.~~ New York time, on the date of this ~~Agreement,~~ Agreement or such later ~~time and~~ date as shall have been consented to by the ~~Representatives, which consent shall be deemed to have been given if~~ Representative. If the time of effectiveness of the Initial Registration Statement is prior to the execution and delivery of this Agreement, the Preliminary Prospectus, the Ratings Free Writing Prospectus and the Final Prospectus and all amendments and supplements thereto shall have been ~~declared effective~~ filed with the Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement. If the time of effectiveness of the Additional Registration Statement (if any) is not prior to the execution and delivery of this Agreement, such time of effectiveness shall have occurred not later than [ ] [a.m.] [p.m.], New York time, on ~~or before~~ the date of this Agreement or, if earlier, the time the Final Prospectus is printed and ~~time requested in the acceleration request submitted on behalf of the Representatives pursuant~~ distributed to ~~Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act~~ any Underwriter, or shall have occurred at such later date as shall have been ~~timely made;~~ consented to by the Representative. Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Seller, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faith. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the ProspectusCommission. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives Underwriters shall have received ~~opinions of Foley & Lardner~~an officers’ certificate, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the ~~First Closing Date or the Second~~ Closing Date, as signed by the ~~case may be~~Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of the Seller representing and warranting that, to the ~~effect that~~best of such officers’ knowledge after reasonable investigation, as of the Closing Date: (i) The ~~Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power~~ representations and ~~authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock~~ warranties of the ~~Company consists of 60,000,000 shares of Common Stock~~Seller in this Agreement are true and correct in all material respects, ~~par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share,~~ that the Seller has complied with all agreements and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform satisfied in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the ~~requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent~~Closing Date, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, that no stop order suspending the effectiveness of ~~the~~ any Registration Statement has been issued and no proceedings for that purpose have been instituted or or, to the best of their knowledge, are ~~threatened~~ contemplated by the Commission~~; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement~~ . (~~except for the financial statements and schedules and other statistical or financial data included~~ ii) Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended and supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of the Seller or any of its affiliates (as such term is defined in Rule 501(b) under the Act) (each, an “Affiliate”), or in the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the term “material” in this Agreement that refer to the Seller or its Affiliates, or any of them, shall be interpreted in proportion to the business of the Servicer and its consolidated subsidiaries, as a whole, and not in proportion to the business of the Seller or its Affiliate(s) individually. (d) The Underwriters shall have received an officers’ certificate, dated the Closing Date, signed by the Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of the Servicer representing and warranting that, to the best of such ~~counsel need express no opinion~~officers’ knowledge after reasonable investigation, as of the Closing Date: (i) ~~comply as to form~~ The representations and warranties of the Servicer in this Agreement are true and correct in all material ~~respects~~ respects, that the Servicer has complied with all agreements and satisfied, in all material respects, all conditions on its part to be performed or satisfied hereunder at or prior to the ~~requirements~~ Closing Date, that no stop order suspending the effectiveness of any Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the best of their knowledge, are contemplated by the Commission. (ii) Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended and supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ~~Act;~~ ordinary course of business, of the ~~conditions for use~~ Servicer or any of ~~Form S-3~~its Affiliates, ~~set forth~~ or the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the term “material” in this Agreement that refer to the ~~General Instructions thereto~~Servicer or its Affiliates, ~~have been satisfied;~~or any of them, shall be interpreted in proportion to the business of the Servicer and its consolidated subsidiaries, as a whole, and not in proportion to the business of the Servicer or its Affiliate(s) individually. (~~vii~~e) ~~To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required~~ Subsequent to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this ~~Agreement or the consummation of the transactions contemplated by this Agreement~~ Agreement, there shall not have occurred (~~except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x~~i) ~~The execution, delivery and performance of this Agreement by the Company will not: (A) violate~~ any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiarychange, or any development involving a prospective change, in or affecting particularly the business or properties of ~~their respective owned~~ the Seller, Nissan North America, Inc. (“NNA”) or ~~leased property is bound~~the Servicer which, in the judgment of the Representative, materially impairs the investment quality of the [Underwritten] Notes or makes it impractical or inadvisable to proceed with completion of the sale of and ~~which is filed or incorporated by reference as an exhibit to~~ payment for the ~~Registration Statement~~[Underwritten] Notes; or (Cii) ~~violate~~ any ~~statute, ordinance, order, rule, decree or regulation~~ suspension of trading of any ~~court, regulatory~~ securities of NNA on any exchange or ~~governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction~~ in any over the ~~Company~~ counter market; (iii) any suspension or ~~the Significant Subsidiary (assuming compliance with all applicable federal and state~~ limitation of trading in securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading generally on the New York Stock ~~Exchange;~~Exchange or any setting of minimum prices for trading on such exchange; (iv) any material disruption in commercial banking, securities entitlement or clearance services in the United States; (v) any banking moratorium declared by federal or New York authorities; or (vi) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the [Underwritten] Notes. (~~xiii~~f) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of At the Closing Date, ~~contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein~~▇▇▇▇ ▇▇▇▇, ~~in light~~ Esq., General Counsel of the ~~circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding~~ Seller and the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference thereinServicer, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "other counsel satisfactory to the ~~knowledge of such counsel," such qualification~~ Representative in its reasonable judgment, shall ~~signify that no information has come to the attention of the attorneys in such firm who~~ have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the ~~Representatives~~ Representative such counsel’s written opinion, dated the Closing Date, in form and ~~for~~ substance reasonably satisfactory to the Underwriters ~~on or before each Closing Date~~and counsel to the Underwriters. (eg) ~~The Representatives shall have received an opinion of Michael Best & Friedrich LLP~~At the Closing Date, ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel to the Seller and the Servicer, shall have furnished to the Representative their written opinion, dated as of the Closing Date, with respect to general corporate matters, the validity of the Notes, the Registration Statement and the Prospectus, the effectiveness of such Registration Statement and the information contained in each of the Registration Statement and the Prospectus, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters. (h) At the Closing Date, ▇▇▇▇▇ ▇▇▇▇~~ters~~▇ LLP, or such counsel as may be reasonably acceptable to the Underwriters, shall have furnished their written opinion, dated the ~~First Closing Date or the Second~~ Closing Date~~, as the case may be~~, with respect to the ~~sale~~ characterization of the ~~Shares hereunder~~transfer of the Receivables by the Servicer to the Seller and with respect to other bankruptcy and perfection of security interest matters, in form and in substance reasonably satisfactory to the ~~Registration Statement~~ Underwriters and counsel to the Underwriters. (i) At the Closing Date, [ ], counsel to the Underwriters, shall have furnished their written opinion dated the Closing Date, with respect to the validity of the Notes and such other related matters as the ~~Representatives may~~ Representative shall require, in form and substance reasonably ~~require~~satisfactory to the Underwriters, and the ~~Company~~ Seller shall have furnished or caused to be furnished to such counsel such documents ~~and shall have exhibited to them such papers and records~~ as ~~such counsel~~ they may reasonably request for the purpose of enabling them to pass upon such matters. (fj) At the Closing Date, [ ], counsel to the Trust and the Owner Trustee, shall have furnished their written opinion addressed to you, the Seller and the Servicer, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters. (k) At the Closing Date, [ ], counsel to the Indenture Trustee, shall have furnished their written opinions, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters. (l) The ~~Representatives~~ Representative shall have received ~~on each~~ an officer’s certificate dated the Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, Date of the ~~Company~~Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of each of the Seller and the Servicer in ~~their respective capacities as such~~which each such officer shall state that, to the ~~effect that: (i) The~~ best of such officer’s knowledge after reasonable investigation, the representations and warranties of the ~~Company set forth~~ Seller or the Servicer, as applicable, contained in ~~Section 2 hereof~~ the Sale and Servicing Agreement and the representations and warranties of the Servicer or the Seller, as applicable, contained in the Purchase Agreement are true and correct ~~as of the date of this Agreement and as of the date of such certificate, and the Company has complied~~ in all material respects and that the Seller or the Servicer, as applicable, has complied with all ~~the~~ agreements and satisfied all ~~the~~ conditions on its part to be performed or satisfied ~~by it~~ under such agreements at or prior to the ~~date of such certificate;~~Closing Date in all material respects. (iim) The ~~Commission has not issued~~ Representative shall have received evidence of ratings letters that assign the ratings to the [Underwritten] Notes as specified in the Ratings Free Writing Prospectus. (n) On or prior to the Closing Date, the Seller shall have furnished to the Representative such further certificates and documents as the Representative shall reasonably have required. (o) At the Closing Date, the Representative shall have received an ~~order preventing or suspending~~ opinion of [ ], special Tennessee counsel to the ~~use~~ Seller and the Servicer, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters. (p) [The Representative shall have receive an opinion of special counsel to the [Swap Counterparty][Cap Provider], dated the Closing Date and satisfactory in form and substance to the Representative and its counsel, with respect to the enforceability of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; Interest Rate [Swap][Cap] Agreement(s).] 15 (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set foNissan 20[ ]-[ ] Underwriting Agreement)

Appears in 1 contract

Sources: Underwriting Agreement (Nissan Auto Receivables Corp Ii)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of the date hereof and as of each Closing Date~~Corporation herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Corporation made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Corporation of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Prospectus shall have been ~~declared effective~~ filed by the Corporation with the Commission ~~not later than 5:30 p.m., Washington, D.C. time, on~~ pursuant to Rule 424(b) within the ~~date of this Agreement, or such later~~ applicable time period prescribed for filing by the 1933 Act Regulations and ~~date as~~ in accordance herewith and the Permitted Free Writing Prospectus shall have been ~~consented to~~ filed by the ~~Representatives~~Corporation with the Commission within the applicable time periods prescribed for such filings by, ~~which consent shall be deemed~~ and otherwise in compliance with, Rule 433. (b) At or after the Applicable Time and prior to ~~have been given if~~ the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued by and no proceedings for that purpose or pursuant to Section 8A of the ~~Commission or any state securities commission nor~~1933 Act shall have been instituted or, to the knowledge of the ~~Company~~Corporation or you, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be threatened by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) ~~Subsequent~~ At or after the Applicable Time and prior to the ~~execution~~ Closing Date, the rating assigned by ▇▇▇▇▇’▇ Investors Service, Inc., S&P Global Ratings or Fitch Ratings, Inc. (or any of their successors) to any debt securities or preferred stock of the Corporation as of the date of this ~~Agreement,~~Agreement shall not have been lowered. (id) Since the respective most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus and up to the Closing Date, there shall not have ~~occurred~~ been any material adverse change in the condition of the Corporation, financial or ~~development involving~~otherwise, except as reflected in or ~~which could be reasonably expected~~ contemplated by the Pricing Disclosure Package and the Prospectus, and, since such dates and up to ~~involve~~the Closing Date, ~~a Material Adverse Effect, whether or~~ there shall not ~~arising from~~ have been any material transaction entered into by the Corporation other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which ~~on the Company,~~ in ~~any such case described in clause (i) or (ii) above,~~ your reasonable judgment is ~~in the reasonable and good faith opinion of the Representatives~~ so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Shares~~ Notes on the terms and in the manner contemplated in by the ~~Registration Statement~~ Pricing Disclosure Package and the Prospectus. (ce) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives You shall have received ~~opinions~~ an opinion of ~~Foley & Lardner, special couns~~▇▇▇▇▇▇ ▇. ▇~~r the Company (as to the matters set forth below in subsections (i)~~▇▇▇▇ III, ~~(ii)~~Esq., ~~(vi), (viii), (ix) and (xiv)), and the Vice President,~~ Deputy General Counsel ~~and Secretary~~ of Duke Energy Business Services LLC, the service company subsidiary of the ~~Company (as to the matters set forth in subsections (iii)~~Corporation, ~~(iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and~~ dated the ~~First Closing Date or the Second~~ Closing Date~~, as the case may be~~, to the effect that: (i) ~~The Company~~ Each of Duke Energy Ohio, Inc., Progress Energy, Inc. and Piedmont Natural Gas Company, Inc., has been duly incorporated and is validly existing ~~as a corporation~~ in good standing under the laws of ~~Delaware, with full~~ the jurisdiction of its incorporation and has the respective corporate power and authority and foreign qualifications necessary to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate own its properties and to conduct its business as ~~presently conducted~~ described in the Pricing Disclosure Package and the Prospectus. Each of Duke Energy Carolinas, LLC, Duke Energy Florida, LLC, Duke Energy Indiana, LLC and Duke Energy Progress, LLC has been duly organized and is validly existing and in good standing as a limited liability company under the laws of the State of North Carolina, the State of Florida, the State of Indiana and the State of North Carolina, respectively, and has full limited liability company power and authority necessary to own its properties and to conduct its business as described in the ~~Prospectus~~ Pricing Disclosure Package and the ~~Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all~~ Prospectus. (ii) Each of the ~~issued~~ Corporation and ~~outstanding capital stock~~ the Principal Subsidiaries is duly qualified to do business in each jurisdiction in which the ownership or leasing of its property or the conduct of its business requires such qualification, except where the failure to so qualify, considering all such cases in the aggregate, does not have a material adverse effect on the business, properties, financial condition or results of operations of the ~~Significant Subsidiary;~~Corporation and its subsidiaries taken as a whole. (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (viiii) The Registration Statement ~~has become~~ became effective ~~under~~ upon filing with the Commission pursuant to Rule 462 of the 1933 Act Regulations, and, to the best of such counsel's ’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened by under the ~~Commission;~~ 1933 Act. (iv) The descriptions in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package and the Prospectus ~~and~~ of any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings ~~that~~ are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, accurate and ~~in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein,~~ fairly present the information ~~called for with respect~~ required to be shown, and such counsel does not know of any litigation or any legal ~~matters~~or governmental proceeding instituted or threatened against the Corporation or any of its Principal Subsidiaries or any of their respective properties that would be required to be disclosed in the Registration Statement, ~~documents~~ the Pricing Disclosure Package or the Prospectus and ~~proceedings;~~is not so disclosed. (ixv) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this This Agreement has been duly authorized, executed and delivered by ~~and on behalf of~~ the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD);Corporation. (xvi) The execution, delivery and performance by the Corporation of this Agreement by and the ~~Company will not: (A) violate any provisions~~ Indenture and the issue and sale of the ~~Articles of Incorporation~~ Notes will not violate or ~~Bylaws of the Company or the Significant Subsidiary; (B) violate~~ contravene any of the provisions ofof the Certificate of Incorporation or By-Laws of the Corporation or any statute or any order, rule or regulation of which such counsel is aware of any court or governmental agency or body having jurisdiction over the Corporation or any of its Principal Subsidiaries or any of their respective property, nor will such action conflict with or result in a breach or violation of any of the ~~breach, modification~~ terms or ~~termination~~ provisions of, or constitute a default ~~under,~~ under any ~~agreement, lease, franchise, license,~~ indenture~~, permit~~, mortgage, deed of trust, ~~other evidence of indebtedness~~ loan agreement or other agreement or instrument known to such counsel to which the ~~Company~~ Corporation or ~~the Significant Subsidiary~~ any of its Principal Subsidiaries is a party or by which any of them or their respective property is bound or to which any of its property or assets is subject, which affects in a material way the ~~Company~~ Corporation’s ability to perform its obligations under this Agreement, the Indenture and the Notes. (vii) The Indenture has been duly authorized, executed and delivered by the Corporation and, assuming the due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument of the Corporation, enforceable against the Corporation in accordance with its terms. (viii) The Notes have been duly authorized, executed and issued by the Corporation and, when authenticated by the Trustee, in the manner provided in the Indenture and delivered against payment therefor, will constitute valid and legally binding obligations of the Corporation enforceable against the Corporation in accordance with their terms, and are entitled to the benefits afforded by the Indenture in accordance with the terms of the Indenture and the Notes. (ix) No consent, approval, authorization, order, registration or ~~the Significant Subsidiary~~qualification is required to authorize, or ~~any~~ for the Corporation to consummate the transactions contemplated by this Agreement, except for such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of ~~their respective owned or leased property is bound~~the Notes by the Underwriters and except as required in Condition No. 7.6 of the order of the North Carolina Utilities Commission dated September 29, 2016, in Docket Nos. E-7, Sub 1100, E-2, Sub 1095, and G-9, Sub 682, which consent has been obtained. Such counsel may state that his opinions in paragraphs (vii) and (viii) are subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is ~~filed~~ considered in a proceeding in equity or at law). Such counsel shall state that nothing has come to his attention that has caused him to believe that each document incorporated by reference ~~as an exhibit to~~ in the Registration Statement~~; or (C) violate any statute~~, ~~ordinance~~the Pricing Disclosure Package and the Prospectus, ~~order~~when filed, ~~rule~~was not, ~~decree or regulation of any court~~on its face, ~~regulatory or governmental body~~appropriately responsive, ~~arbitrator~~in all material respects, ~~administrative agency or other instrumentality~~ to the requirements of the ~~United States having jurisdiction over~~ 1934 Act and the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the 1934 Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amendedRegulations. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information nothing has come to his attention that ~~was developed in the course of the performance of such services, they have no reason~~ has caused him to believe that (i) the Registration ~~Statement~~ Statement, including ~~any document incorporated by reference therein~~the Rule 430B Information, on as of its effective ~~date~~date and at each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations, contained any untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package at the Applicable Time contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) that the ~~Prospectus,~~ Prospectus or any amendment or supplement ~~thereto including any document incorporated by reference therein~~thereto, as of ~~its issue date~~ their respective dates and ~~as of~~ at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading (~~misleading. Such counsel may also state that, except as otherwise expressly provided ~~that~~ in such ~~counsel need express no belief regarding~~ opinion, he does not assume any responsibility for the ~~financial~~ accuracy, completeness or fairness of the statements ~~and related schedules and other financial or statistical data~~ contained in or incorporated by reference into the Registration Statement, the Pricing Disclosure Package or the Prospectus and does not express any ~~amendment thereto including any document~~ opinion or belief as to (i) the financial statements or other financial and accounting data contained or incorporated by reference ~~therein~~therein or excluded therefrom, or including XBRL interactive data, (ii) the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention statement of the ~~attorneys~~ eligibility and qualification of the Trustee included in ~~such firm who have been involved in the preparation or review of~~ the Registration Statement (the “Form T-1”) or (iii) the information in the Prospectus under the caption “Book-Entry System.” In rendering the foregoing opinion, such counsel may state that ~~would give them actual current knowledge~~ he does not express any opinion concerning any law other than the law of the ~~existence or absence~~ State of ~~such matter in question. In rendering such opinion, counsel for the Company may rely~~North Carolina or, to the extent ~~counsel deems such reliance proper~~set forth in the foregoing opinions, the federal securities laws and may rely as to all matters of ~~fact upon certificates~~ the laws of the States of South Carolina, Ohio, Indiana and Florida on appropriate counsel reasonably satisfactory to the Representatives, which may include the Corporation’s other “in-house” counsel). Such counsel may also state that he has relied as to certain factual matters on information obtained from public officials, officers of the ~~Company~~ Corporation and ~~any governmental officials, and copies of all such certificates shall~~ other sources believed by him to be ~~furnished to the Representatives and for the Underwriters on or before each Closing Date~~responsible. (ef) ~~The Representatives~~ You shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, Hunton ▇▇▇▇▇▇▇ ▇▇▇▇~~sel and Secretary~~▇ LLP, of counsel to the ~~Company~~Corporation, ~~in their respective capacities as such~~dated the Closing Date, to the effect that: (i) The ~~representations~~ Corporation has been duly incorporated and ~~warranties~~ is a validly existing corporation in good standing under the laws of the ~~Company set forth in Section 2 hereof are true and correct as~~ State of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate;Delaware. (ii) The ~~Commission~~ Corporation has ~~not issued an order preventing or suspending~~ the ~~use of~~ corporate power and corporate authority to execute and deliver this Agreement and the ~~Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued;~~ Supplemental Indenture and to consummate the ~~knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction;~~transactions contemplated hereby. (iii) ~~Each~~ This Agreement has been duly authorized, executed and delivered by the Corporation. (iv) The Indenture has been duly authorized, executed and delivered by the Corporation and, assuming the due authorization, execution and delivery thereof by the Trustee, is a valid and binding agreement of the ~~respective signatories has examined~~ Corporation, enforceable against the ~~Registration Statement~~ Corporation in accordance with its terms. (v) The Notes have been duly authorized and executed by the Corporation, and, when duly authenticated by the Trustee and issued and delivered by the Corporation against payment therefor in accordance with the terms of this Agreement and the Indenture, the Notes will constitute valid and binding obligations of the Corporation, entitled to the benefits of the Indenture and enforceable against the Corporation in accordance with their terms. (vi) The statements set forth (i) under the caption “Description of Debt Securities” (other than under the caption “Global Securities”) that are included in the Base Prospectus and (ii) under the caption “Description of the Notes” in the Pricing Disclosure Package and the Prospectus, insofar as such statements purport to summarize certain provisions of the Indenture and ~~any amendment or supplement thereto~~the Notes, ~~including any documents filed~~ fairly summarize such provisions in all material respects. (vii) The statements set forth under the ~~Exchange Act and deemed to be incorporated by reference~~ caption “Material U.S. Federal Income Tax Considerations,” in the ~~Registration Statement~~Pricing Disclosure Package and the Prospectus, insofar as such statements purport to constitute summaries of matters of United States federal income tax law, constitute accurate and ~~such documents contain~~ complete summaries, in all ~~statements of~~ material ~~fact required~~ respects, subject to ~~be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make~~ the ~~statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be~~ qualifications set forth ~~in an amended or supplemented prospectus or in an amendment to the Registration Statement that~~ therein. (viii) No Governmental Approval, which has not been ~~so set fo~~obtained or taken and is not in full force and effect, is required to authorize, or is required for, the execution or delivery of this Agreement by the Corporation or the consummation by the Corporation of the transactions contemplated

Appears in 1 contract

Sources: Underwriting Agreement (Duke Energy CORP)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of the ~~Company~~ Seller and the Servicer herein ~~set forth as of~~ on the date hereof and ~~as of each~~ at the Closing Date, to the accuracy of the statements of officers of the ~~Company's officers~~ Seller and the Servicer made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Seller and the Servicer of ~~its~~ their respective obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) ~~The~~ At the time this Agreement is executed and delivered by the Seller and at the Closing Date, a nationally recognized accounting firm who are independent public accountants shall have furnished to the Representative letters dated respectively as of the date of this Agreement and as of the Closing Date substantially in the forms of the drafts to which the Representative previously agreed. 11 (Nissan 2013-C Underwriting Agreement) (b) If the time of effectiveness of the Initial Registration Statement is not prior to the execution and delivery of this Agreement, such time of effectiveness shall have ~~been declared effective by the Commission~~ occurred not later than ~~5:30~~ 10:00 p.m., ~~Washington, D.C.~~ New York time, on the date of this ~~Agreement,~~ Agreement or such later ~~time and~~ date as shall have been consented to by the ~~Representatives, which consent shall be deemed to have been given if~~ Representative. If the time of effectiveness of the Initial Registration Statement is prior to the execution and delivery of this Agreement, the Preliminary Prospectus, the Ratings Free Writing Prospectus and the Final Prospectus and all amendments and supplements thereto shall have been ~~declared effective~~ filed with the Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement. If the time of effectiveness of the Additional Registration Statement (if any) is not prior to the execution and delivery of this Agreement, such time of effectiveness shall have occurred not later than 10:00 p.m., New York time, on ~~or before~~ the date of this Agreement or, if earlier, the time the Final Prospectus is printed and ~~time requested in the acceleration request submitted on behalf of the Representatives pursuant~~ distributed to ~~Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act~~ any Underwriter, or shall have occurred at such later date as shall have been ~~timely made;~~ consented to by the Representative. Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Seller, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faith. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the ProspectusCommission. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives Underwriters shall have received ~~opinions of Foley & Lardner~~an officers’ certificate, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the ~~First Closing Date or the Second~~ Closing Date, as signed by the ~~case may be~~Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of the Seller representing and warranting that, to the ~~effect that~~best of such officers’ knowledge after reasonable investigation, as of the Closing Date: (i) The ~~Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power~~ representations and ~~authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock~~ warranties of the ~~Company consists of 60,000,000 shares of Common Stock~~Seller in this Agreement are true and correct in all material respects, ~~par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share,~~ that the Seller has complied with all agreements and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform satisfied in all material respects all conditions on its part to be performed or satisfied hereunder at or prior to the ~~requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent~~Closing Date, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, that no stop order suspending the effectiveness of ~~the~~ any Registration Statement has been issued and no proceedings for that purpose have been instituted or or, to the best of their knowledge, are ~~threatened~~ contemplated by the Commission~~; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement~~ . (~~except for the financial statements and schedules and other statistical or financial data included~~ ii) Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended and supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ordinary course of business, of the Seller or any of its affiliates (as such term is defined in Rule 501(b) under the Act) (each, an “Affiliate”), or in the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the term “material” in this Agreement that refer to the Seller or its Affiliates, or any of them, shall be interpreted in proportion to the business of the Servicer and its consolidated subsidiaries, as a whole, and not in proportion to the business of the Seller or its Affiliate(s) individually. 12 (Nissan 2013-C Underwriting Agreement) (d) The Underwriters shall have received an officers’ certificate, dated the Closing Date, signed by the Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of the Servicer representing and warranting that, to the best of such ~~counsel need express no opinion~~officers’ knowledge after reasonable investigation, as of the Closing Date: (i) ~~comply as to form~~ The representations and warranties of the Servicer in this Agreement are true and correct in all material ~~respects~~ respects, that the Servicer has complied with all agreements and satisfied, in all material respects, all conditions on its part to be performed or satisfied hereunder at or prior to the ~~requirements~~ Closing Date, that no stop order suspending the effectiveness of any Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the best of their knowledge, are contemplated by the Commission. (ii) Except as otherwise set forth therein, there has been no material adverse change, since the respective dates as of which information is given in the Preliminary Prospectus or the Final Prospectus (as then amended and supplemented), in the condition, financial or otherwise, earnings or business affairs, whether or not arising out of the ~~Act;~~ ordinary course of business, of the ~~conditions for use~~ Servicer or any of ~~Form S-3~~its Affiliates, ~~set forth~~ or the ability of such entity to perform its obligations under each Basic Document to which it is a party or by which it may be bound. Except as otherwise indicated by the context, all references to the term “material” in this Agreement that refer to the ~~General Instructions thereto~~Servicer or its Affiliates, ~~have been satisfied;~~or any of them, shall be interpreted in proportion to the business of the Servicer and its consolidated subsidiaries, as a whole, and not in proportion to the business of the Servicer or its Affiliate(s) individually. (~~vii~~e) ~~To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required~~ Subsequent to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this ~~Agreement or the consummation of the transactions contemplated by this Agreement~~ Agreement, there shall not have occurred (~~except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x~~i) ~~The execution, delivery and performance of this Agreement by the Company will not: (A) violate~~ any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiarychange, or any development involving a prospective change, in or affecting particularly the business or properties of ~~their respective owned~~ the Seller, Nissan Motor Co., Ltd., Nissan North America, Inc. (“NNA”) or ~~leased property is bound~~the Servicer which, in the judgment of the Representative, materially impairs the investment quality of the Notes or makes it impractical or inadvisable to proceed with completion of the sale of and ~~which is filed or incorporated by reference as an exhibit to~~ payment for the ~~Registration Statement~~Notes; or (Cii) ~~violate~~ any ~~statute, ordinance, order, rule, decree or regulation~~ suspension of trading of any ~~court, regulatory~~ securities of NNA on any exchange or ~~governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction~~ in any over the ~~Company~~ counter market; (iii) any suspension or ~~the Significant Subsidiary (assuming compliance with all applicable federal and state~~ limitation of trading in securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading generally on the New York Stock ~~Exchange;~~Exchange or any setting of minimum prices for trading on such exchange; (iv) any material disruption in commercial banking, securities entitlement or clearance services in the United States; (v) any banking moratorium declared by federal or New York authorities; or (vi) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Notes. (~~xiii~~f) To At the Closing Date, ▇▇▇▇ ▇▇▇▇, Esq., General Counsel of the Seller and the Servicer, or other counsel satisfactory to the Representative in its reasonable judgment, shall have furnished to the Representative such counsel~~'s knowledge~~’s written opinion, ~~neither~~ dated the ~~Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be~~Closing Date, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers form and ~~other representatives of the Company, representatives of auditors for the Company and representatives of~~ substance reasonably satisfactory to the Underwriters and ~~their~~ counsel ~~during which~~ to the ~~content of~~ Underwriters. 13 (Nissan 2013-C Underwriting Agreement) (g) At the ~~Registration Statement~~ Closing Date, ▇▇▇▇▇ ▇▇▇▇▇ LLP, special counsel to the Seller and the ~~Prospectus and related matters were discussed and reviewed~~Servicer, ~~and that~~shall have furnished to the Representative their written opinion, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and dated as of the Closing Date, ~~contained or contains any untrue statement of a material fact or omitted or omits~~ with respect to ~~state a material fact necessary in order to make~~ general corporate matters, the ~~statements therein, in light~~ validity of the ~~circumstances under which they were made~~Notes, ~~not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in~~ the Registration Statement, ~~any amendment thereto including any document incorporated by reference therein, or~~ the Prospectus Supplement and the Base Prospectus, ~~or any amendment or supplement thereto including any document incorporated by reference therein). To~~ the ~~extent that any~~ effectiveness of such ~~opinions are stated to be based upon such counsel's knowledge or to be given "to~~ Registration Statement and the ~~knowledge of such counsel," such qualification shall signify that no~~ information ~~has come to the attention of the attorneys~~ contained in ~~such firm who have been involved in the preparation or review~~ each of the Registration ~~Statement or~~ Statement, the Prospectus ~~that would give them actual current knowledge of~~ Supplement and the ~~existence or absence of such matter~~ Base Prospectus, in ~~question. In rendering such opinion, counsel for the Company may rely,~~ form and substance reasonably satisfactory to the ~~extent~~ Underwriters and counsel ~~deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished~~ to the ~~Representatives and for the Underwriters on or before each Closing Date~~Underwriters. (eh) ~~The Representatives~~ At the Closing Date, ▇▇▇▇▇ ▇▇▇▇▇ LLP, or such counsel as may be reasonably acceptable to the Underwriters, shall have ~~received an opinion~~ furnished their written opinion, dated the Closing Date, with respect to the characterization of ~~Michael Best & Friedrich LLP~~the transfer of the Receivables by the Servicer to the Seller and with respect to other bankruptcy and perfection of security interest matters, in form and in substance reasonably satisfactory to the Underwriters and counsel to the Underwriters. (i) At the Closing Date, ▇▇▇▇▇▇~~▇ ▇▇▇ the~~ , ▇▇▇▇▇▇▇▇~~ters~~▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, shall have furnished their written opinion dated the ~~First Closing Date or the Second~~ Closing Date~~, as the case may be~~, with respect to the ~~sale~~ validity of the ~~Shares hereunder, the Registration Statement~~ Notes and such other related matters as the ~~Representatives may~~ Representative shall require, in form and substance reasonably ~~require~~satisfactory to the Underwriters, and the ~~Company~~ Seller shall have furnished or caused to be furnished to such counsel such documents ~~and shall have exhibited to them such papers and records~~ as ~~such counsel~~ they may reasonably request for the purpose of enabling them to pass upon such matters. (fj) ~~The Representatives shall have received on each~~ At the Closing Date, ~~a certificate of Kenneth W. Krueger, Senior Vic▇~~ ▇▇▇▇▇▇▇▇▇ , ▇▇▇▇▇▇ & ▇▇~~ief Financial Officer~~▇▇▇▇, P.A., counsel to the Trust and ~~W. David Romoser~~the Owner Trustee, ~~Vice President~~shall have furnished their written opinion addressed to you, the Seller and the Servicer, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters. (k) At the Closing Date, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ~~▇▇▇▇sel~~ LLP, counsel to U.S. Bank National Association, as Indenture Trustee, shall have furnished their written opinion, dated the Closing Date, in form and ~~Secretary,~~ substance reasonably satisfactory to the Underwriters and counsel to the Underwriters. (l) The Representative shall have received an officer’s certificate dated the Closing Date of the ~~Company~~Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of each of the Seller and the Servicer in ~~their respective capacities as such~~which each such officer shall state that, to the ~~effect that: (i) The~~ best of such officer’s knowledge after reasonable investigation, the representations and warranties of the ~~Company set forth~~ Seller or the Servicer, as applicable, contained in ~~Section 2 hereof~~ the Sale and Servicing Agreement and the representations and warranties of the Servicer or the Seller, as applicable, contained in the Purchase Agreement are true and correct ~~as of the date of this Agreement and as of the date of such certificate, and the Company has complied~~ in all material respects and that the Seller or the Servicer, as applicable, has complied with all ~~the~~ agreements and satisfied all ~~the~~ conditions on its part to be performed or satisfied ~~by it~~ under such agreements at or prior to the ~~date of such certificate;~~Closing Date in all material respects. (iim) The ~~Commission has not issued an order preventing or suspending~~ Representative shall have received evidence of ratings letters that assign the ~~use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and~~ ratings to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference Notes as specified in the ~~Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact~~ Ratings Free Writing Prospectus. 14 (Nissan 2013-C Underwriting Agreement) (n) On or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment prior to the ~~Registration Statement that has not been so set fo~~Closing Date, the Seller shall have furnished to the Representative such further certificates and documents as the Representative shall reasonably have required.

Appears in 1 contract

Sources: Underwriting Agreement (Nissan Auto Receivables 2013-C Owner Trust)

Conditions of the Obligations of the Underwriters. The ~~obligations~~ obligation of the ~~several~~ Underwriters ~~under this Agreement shall~~ to purchase and pay for the Underwritten Notes will be subject to the accuracy of the representations and warranties on given by the ~~part of~~ Transferor, the ~~Company herein set forth as of~~ Issuer and the ~~date hereof and as of each Closing Date~~Bank herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Transferor, the Issuer and the Bank made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Transferor, the Issuer and the Bank of ~~its~~ their respective obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Representatives shall have ~~been declared effective by the Commission not later than 5:30 p.m.~~received letters, ~~Washington, D.C. time, on~~ dated as of the date of the Preliminary Prospectus and as of the date of the Prospectus and addressed to the Underwriters, from a nationally recognized accounting firm acceptable to the Representatives, confirming that they are independent public accountants within the meaning of the Act and the applicable published Rules and Regulations thereunder, substantially in the form heretofore agreed to and otherwise in form and in substance satisfactory to the Representatives and their counsel. (b) The Representatives shall have received (i) fully executed copies of this Agreement, ~~or such later time~~ the Indenture and ~~date as~~ the other Program Documents duly executed and delivered by the parties thereto and (ii) evidence satisfactory to the Representatives that the Retained Notes Transaction has been consummated. (c) The Preliminary Prospectus and the Prospectus shall have been ~~consented~~ filed with the Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement and, prior to by the ~~Representatives~~Closing Date, which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Transferor or the Representatives, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the ~~Commission or any state securities commission for inclusion of additional information in the~~ Commission. The Registration Statement, ~~or otherwise~~the Preliminary Prospectus, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faith. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement each Issuer Free Writing Prospectus and the Prospectus. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives shall have received opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any each amendment or supplement thereto, ~~including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical~~ as of their respective effective or ~~financial data included therein~~issue dates, ~~as to which such counsel need express no opinion) comply~~ complied as to form in all material respects with the requirements of the Act~~; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied;~~. (~~vii~~d) ~~To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required~~ Subsequent to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement ~~or the consummation~~ none of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will notfollowing shall have occurred: (Ai) ~~violate~~ any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiarychange, or any ~~of their respective owned~~ development involving a prospective change, in or ~~leased property is bound~~affecting particularly CMCCT, ~~and which is filed~~ the Issuer, the business or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality properties of the ~~United States having jurisdiction over the Company~~ Transferor or the ~~Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge~~Bank which, ~~there are no holders of Common Stock or other securities~~ in the judgment of the ~~Company~~Underwriters make it impractical or inadvisable to proceed with the completion and sale of and payment for the Underwritten Notes, (ii) any suspension or limitation of trading in securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading generally on the New York Stock Exchange; , the American Stock Exchange or the NASDAQ National Market or any setting of minimum prices for trading on any such exchange; (~~xiii~~iii) ~~To such counsel's knowledge~~a banking moratorium shall have been declared by Federal or state authorities; (iv) any material disruption in securities settlement or clearance services in the United States, ~~neither~~ the ~~Company nor~~ direct effect of which on any party involved in the ~~Significant Subsidiary is, nor~~ settlement or clearance of the Notes would make it impractical to proceed with the ~~giving~~ completion and sale of ~~notice~~ and payment for the Notes; (v) the United States shall have become engaged in hostilities, there shall have been an escalation of hostilities involving the United States or ~~passage~~ there shall have been a declaration of ~~time~~ a national emergency or ~~both would be~~war by the United States or any other substantial national or international calamity or emergency which, in ~~violation~~ the judgment of ~~its respective Articles~~ the Underwriters, the effect of ~~Incorporation~~ such hostilities, escalation, declaration or ~~Bylaws~~other calamity or emergency makes it impractical or inadvisable to proceed with the completion and sale of and payment for the Underwritten Notes; ~~and~~ (~~xiv~~vi) ~~The Company is not an "investment company,"~~ there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets of the United States shall be such) as ~~such term is defined~~ to make it, in the ~~Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives~~ reasonable judgment of the ~~Company~~Representatives, ~~representatives of auditors for~~ impractical or inadvisable to market the ~~Company~~ Notes on the terms and ~~representatives of~~ in the ~~Underwriters and their counsel during which~~ manner contemplated in the ~~content of the Registration Statement~~ Preliminary Prospectus and the Prospectus ~~and related matters were discussed and reviewed~~or (vii) any material adverse change in the financial markets for asset-backed securities if, ~~and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for~~ in the ~~accuracy, completeness or fairness~~ reasonable judgment of the ~~statements contained~~ Representatives, the effect of which is to make it impracticable or ~~incorporated by reference into~~ inadvisable to market the ~~Registration Statement or~~ Notes on the terms and in the manner contemplated in the Preliminary Prospectus and the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received ~~an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇~~ customary opinions (based on assumptions and subject to the ~~▇▇▇▇▇▇▇▇ters~~qualifications and limitations set forth therein), dated the ~~First Closing Date or the Second~~ Closing Date, of [—], as counsel for the ~~case may be~~Transferor and the Bank, ~~with respect~~ satisfactory in form and substance to the ~~sale of~~ Representatives and their counsel, including the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect thatfollowing: (i) The ~~representations~~ Bank (and ~~warranties~~ together with the Transferor, each referred to in this subsection 6(e) as a “WFB Entity”) is a corporation duly organized, validly existing and in good standing under the laws of the ~~Company set forth in Section 2 hereof are true and correct~~ State of Nebraska authorized to operate as ~~of the date of this Agreement and as of the date of such certificate~~a Nebraska state-chartered credit card bank, and has the ~~Company~~ power and authority to own its assets and operate its business as described in the Registration Statement, the Preliminary Prospectus and the Prospectus, and has ~~complied~~ the power to acquire, own and service the Receivables as described in ~~all material respects with all~~ the ~~agreements~~ Registration Statement, the Preliminary Prospectus and ~~satisfied all~~ the ~~conditions to be performed or satisfied by it at or prior to the date of such certificate;~~Prospectus. (ii) The ~~Commission has not issued an order preventing or suspending~~ Transferor is a limited liability company duly organized and validly existing and in good standing under the ~~use~~ laws of the ~~Prospectus~~ State of Nebraska. (iii) The Program Documents and this Agreement have been duly authorized, executed and delivered by each WFB Entity party thereto. (iv) Each WFB Entity has the power and authority to enter into this Agreement and the Program Documents to which it is a party and to consummate the transactions contemplated hereby and thereby. (v) Each of this Agreement and the Program Documents to which a WFB Entity and/or the Issuer is a party and which by its terms is governed by the laws of the State of New York or the laws of the State of Nebraska constitutes the legal, valid and binding obligation of each WFB Entity and the Issuer party thereto, enforceable against each such WFB Entity and the Issuer in accordance with its terms. (vi) The execution and delivery by the WFB Entities of the Program Documents to which they are parties and this Agreement and the incurrence by the WFB Entities of their respective obligations therein set forth and the consummation of the transactions contemplated hereby and thereby do not and will not (i) violate any Requirements of Law, rule or regulation or, to such counsel’s knowledge, any order of any court or governmental agency or body having jurisdiction over any WFB Entity or any of their respective properties or by which any of them or any of their respective properties are or may be bound or affected, (ii) conflict with, or result in a breach of, or constitute a default under the Articles of Incorporation or Bylaws of the Bank or Operating Agreement of the Transferor, or under any material indenture, contract, agreement, deed, lease, mortgage or instrument to which such WFB Entity is a party or by which any such WFB Entity or any of their respective properties are bound (as to each, a “Material Contract”), or (iii) result in the creation or imposition of any Lien under applicable law or under any Material Contract upon any of the property or assets of any such WFB Entity, except for those encumbrances created under the Program Documents. (vii) Except as otherwise disclosed in the Prospectus (and any supplement thereto) or the Registration Statement, there are no legal or governmental proceedings or, to such counsel’s knowledge, threatened to which any WFB Entity or the Issuer is a party or to which any WFB Entity or the Issuer is subject which, individually or in the aggregate (i) would have a material adverse effect on the ability of such WFB Entity or the Issuer to perform its obligations under, or the validity or enforceability of, any Program Document, this Agreement or the Notes to which it is a party, (ii) assert the invalidity of any of the Program Documents or this Agreement, (iii) seek to prevent the issuance, sale or delivery of the Notes or the transactions related thereto, or (iv) seek to affect adversely the federal income tax attributes of the Notes as described under the headings “Structural Summary-Tax Consequences” and “United States Federal Income Tax Consequences.” (viii) No authorization, approval, consent or order of, or filing with, any court or governmental authority or agency is required in connection with the consummation of each of the transactions contemplated hereby and thereby, and the consummation of the Retained Notes Transaction, except such as have been obtained or made or as may be required by the Federal securities laws, the securities or “Blue Sky” laws of the various states in connection with the offer and sale of the Notes except for such filings as may be required to perfect the security interest in the Receivables. (ix) The Notes, when executed, issued, authenticated and delivered pursuant to the Indenture, and delivered against payment of consideration therefore, will be duly and validly issued and outstanding and will constitute the legal, valid and binding obligation of the Issuer, enforceable against the Issuer in accordance with its terms, and will be entitled to the benefits of the Indenture. (x) On April 14, 2004, the Series 2004-1 Certificate was duly and validly issued and outstanding and the holders of the Series 2004-1 Certificate are entitled to the benefits of the PSA. (xi) The direction by the Transferor to the Owner Trustee to execute, issue, countersign and deliver the 2004-1 Certificate has been duly authorized. (xii) The Registration Statement has become effective under the Act, and the Preliminary Prospectus ~~or any amendment or supplement thereto;~~ and the Prospectus have been filed with the Commission pursuant to Rule 424(b) thereunder in the manner and within the time period required by Rule 424(b). To the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement ~~has been issued;~~ or the Prospectus and ~~to the knowledge of the respective signatories,~~ no proceedings for that purpose have been ~~initiated~~ instituted or are ~~pending~~ contemplated by the Commission. (xiii) The conditions to the use of a registration statement on Form S-3 under the ~~Act or under~~ Act, as set forth in the ~~Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined~~ General Instructions to Form S-3, have been satisfied with respect to the Registration Statement and the Prospectus. There are no contracts or documents which are required to be filed as exhibits to the Registration Statement pursuant to the Act or the Rules and Regulations thereunder which have not been so filed. (xiv) The statements in the Base Prospectus and Prospectus Supplement under the headings “Risk Factors,” “Description of the Notes,” “The Indenture,” “The Transfer and Administration Agreement,” “The Trust Agreement,” “The Receivables Purchase Agreement” and “Description of Series Provisions” to the extent such statements purport to summarize certain provisions of the Notes, the 2004-1 Certificate, the Indenture, the TAA, the Trust Agreement and ~~any amendment~~ the Receivables Purchase Agreement, are correct in all material respects. (xv) The statements in the Base Prospectus under the headings “ERISA Considerations,” “United States Federal Income Tax Consequences,” “State and Local Tax Consequences” and “Material Legal Aspects of the Receivables” and the statements in the Prospectus Supplement under the heading “Structural Summary” to the extent that they constitute matters of law or ~~supplement~~ legal conclusions with respect thereto, ~~including any documents filed~~ have been reviewed by such counsel and are correct in all material respects. (xvi) This Agreement, the Program Documents, the Series 2004-1 Certificate and the Notes conform in all material respects to the descriptions thereof contained in the Prospectus. (xvii) The Indenture has been duly qualified under the ~~Exchange Act~~ TIA and ~~deemed~~ complies as to form with the TIA and the rules and regulations of the Commission thereunder. None of the Bank, the Transferor, CMCCT and the Issuer is, nor immediately following the consummation of the transactions contemplated by this Agreement and the Program Documents, including the sale of the Notes and the application of the net proceeds thereof in accordance with the terms of the Prospectus, will be, required to be ~~incorporated~~ registered as an “investment company” under the 1940 Act. The arrangement pursuant to which the Receivables are held does not constitute an “investment company” within the meaning of the 1940 Act. (xviii) The PSA need not be qualified under the TIA. (xix) Subject to the discussion in the Base Prospectus under the heading “United States Federal Income Tax Consequences,” (A) the Notes will properly be characterized as indebtedness and neither CMCCT nor the Issuer will be treated as an association (or publicly traded partnership) taxable as a corporation, for U.S. federal income tax purposes, (B) the issuance of the Notes will not cause or constitute an event in which gain or loss would be recognized by ~~reference in~~ any holder of notes or Investor Certificates of any outstanding series or class, for U.S. federal income tax purposes and (C) the issuance of the Notes pursuant to the Registration Statement, the Prospectus, the Prospectus Supplement and ~~such documents contain all statements~~ the Program Documents will not affect the characterization of ~~material fact required~~ outstanding Investor Certificates of CMCCT or outstanding notes of the Issuer prior to ~~be stated therein, and do not include any untrue statement~~ the issuance of the Notes. (xx) The conditions to the use of a ~~material fact or omit to state any material fact required to be stated therein or necessary to make~~ registration statement on Form S-3 under the ~~statements therein not misleading~~Act, ~~and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be~~ as set forth in ~~an amended or supplemented prospectus or in an amendment~~ the General Instructions to Form S-3, have been satisfied with respect to the Registration Statement ~~that has~~ and the Prospectus. There are no contracts or documents which are required to be filed as exhibits to the Registration Statement pursuant to the Act or the Rules and Regulations thereunder which have not been so ~~set fo~~filed. (xxi) The Registration Statement, at each deemed effective date and at the date hereof (including the Prospectus, as included in the Registration Statement pursuant to Rule 430B(f)(1) and (2) under the Act, at each deemed effective date and at the date hereof), complied as to form in all material respects with the requirements of the Act and the Rules and Regulations under the Act, except that such counsel need not express any opinion as to the financial and statistical data included therein or excluded therefrom or the exhibits to the Registration Statement. (xxii) If the FDIC were appointed as conservator or receiver for the Bank (a) the FDIC regulation entitled “Treatment by the Federal Deposit Insurance Corporation as Conservator or Receiver of Financial Assets Transferred by an Insured Depository Institution in Connection with a Securitization or Participation,” 12 CFR § 360.6 (as amended to the date hereof, the “FDIC Rule”) would be applicable to the transfers of Receivables by the Bank to the Transferor under the Receivables Purchase Agreement and by the Transferor to the CMCCT Trustee under the PSA, (b) under the FDIC Rule, the FDIC, acting as conservator or receiver for the Bank could not, by exercise of its authority to disaffirm or repudiate contracts under 12 U.S.C. § 1821(e), reclaim or recover the Receivables or the proceeds thereof as property of the Bank or of the conservatorship or receivership for Bank, (c) neither the FDIC (acting for itself as creditor or as representative of the Bank or its shareholders or creditors) nor any creditor of the Bank would have the right, under any bankruptcy or insolvency law applicable in conservatorship or receivership of the Bank (including Section 13(e) of the FDIA (as defined in such counsel’s opinion), to avoid the transfers of Receivables by the Bank to the Transferor under the Receivables Purchase Agreement and by the Transferor to the CMCCT Trustee under the PSA, to recover the Receivables, or to require the Receivables to be turned over to the FDIC or such creditor (including by way of any order consolidating the assets and liabilities of CMCCT or of the Transferor with those of the Bank), (d) there is no power exercisable by the FDIC as conservator or receiver for the Bank that would permit the FDIC as such conservator or receiver to reclaim or recover the Receivables from the Transferor or CMCCT, as applicable, or to recharacterize the Receivables as property of the

Appears in 1 contract

Sources: Underwriting Agreement (Cabela's Master Credit Card Trust)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of the Company ~~herein set forth as of the date hereof and as of each Closing Date~~herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Company made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Prospectus shall have been ~~declared effective~~ filed by the Company with the Commission ~~not later than 5:30 p.m., Washington, D.C. time, on~~ pursuant to Rule 424(b) within the ~~date of this Agreement, or such later~~ applicable time period prescribed for filing by the 1933 Act Regulations and ~~date as~~ in accordance herewith and each Permitted Free Writing Prospectus shall have been ~~consented to~~ filed by the ~~Representatives~~Company with the Commission within the applicable time periods prescribed for such filings by, ~~which consent shall be deemed~~ and otherwise in compliance with, Rule 433. (b) At or after the Applicable Time and prior to ~~have been given if~~ the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued by and no proceedings for that purpose or pursuant to Section 8A of the ~~Commission or any state securities commission nor~~1933 Act shall have been instituted or, to the knowledge of the ~~Company~~Company or you, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be threatened by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) ~~Subsequent~~ At or after the Applicable Time and prior to the ~~execution~~ Closing Date, the rating assigned by ▇▇▇▇▇’▇ Investors Service, Inc. or S&P Global Ratings (or any of their successors) to any debt securities or preferred stock of the Company as of the date of this ~~Agreement,~~Agreement shall not have been lowered. (id) Since the respective most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus and up to the Closing Date, there shall not have ~~occurred~~ been any material adverse change in the condition of the Company, financial or ~~development involving~~otherwise, except as reflected in or ~~which could be reasonably expected~~ contemplated by the Pricing Disclosure Package and the Prospectus, and, since such dates and up to ~~involve~~the Closing Date, ~~a Material Adverse Effect, whether or~~ there shall not ~~arising from~~ have been any material transaction entered into by the Company other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which ~~on the Company,~~ in ~~any such case described in clause (i) or (ii) above,~~ your reasonable judgment is ~~in the reasonable and good faith opinion of the Representatives~~ so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Shares~~ Notes on the terms and in the manner contemplated in by the ~~Registration Statement~~ Pricing Disclosure Package and the Prospectus. (ce) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives You shall have received ~~opinions~~ an opinion of ~~Foley & Lardner, special couns~~▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇r ▇, Esq., Deputy General Counsel of Duke Energy Business Services LLC, the ~~Company~~ service company subsidiary of Duke Energy Corporation (as who in such capacity provides legal services to the ~~matters set forth below in subsections (i~~Company), or other appropriate counsel reasonably satisfactory to the Representatives (iiwhich may include Duke Energy Corporation’s other “in-house” counsel), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the ~~First Closing Date or the Second~~ Closing Date~~, as the case may be~~, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the ~~laws~~ law of ~~Delaware~~the State of North Carolina, with ~~full corporate~~ power and authority (corporate and other) to ~~own, lease and operate~~ own its properties and conduct its business as ~~presently conducted and as~~ described in the Pricing Disclosure Package and the Prospectus and ~~the Registration Statement;~~to enter into and perform its obligations under this Agreement. (ii) The ~~authorized capital stock~~ Company is duly qualified to do business in each jurisdiction in which the ownership or leasing of its property or the conduct of its business requires such qualification, except where the failure to so qualify, considering all such cases in the aggregate, does not have a material adverse effect on the business, properties, financial condition or results of operations of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share;Company. (iii) The ~~issued and outstanding shares of capital stock~~ Registration Statement became effective upon filing with the Commission pursuant to Rule 462 of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted)1933 Act Regulations, and, to the best of such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's ’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened by under the ~~Commission;~~ 1933 Act. (iv) The descriptions in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package and the Prospectus ~~and~~ of any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings ~~that~~ are accurate and fairly present the information required to be ~~described~~ shown, and such counsel does not know of any litigation or any legal or governmental proceeding instituted or threatened against the Company or any of its properties that would be required to be disclosed in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package or the Prospectus ~~that are~~ and is not so ~~described~~disclosed. (v) This Agreement has been duly authorized, ~~nor~~executed and delivered by the Company. (vi) The issuance and sale of the Notes by the Company and the execution, to delivery and performance by the Company of this Agreement, the Indenture and the Notes will not contravene any of the provisions of the Articles or Bylaws of the Company, the North Carolina Business Corporation Act or any statute or any order, rule or regulation of which such ~~counsel's knowledge~~counsel is aware of any court or governmental agency or body having jurisdiction over the Company, ~~is there~~ any ~~transaction~~of its properties or any of its subsidiaries, ~~relationship~~nor will such action conflict with or result in a breach or violation of any of the terms or provisions of, ~~agreement~~or constitute a default under any indenture, ~~contract~~ mortgage, deed of trust, loan agreement or other ~~document of~~ agreement to which the Company is a ~~character required to be described in the Registration Statement~~ party or ~~the Prospectus,~~ by which it or ~~required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein,~~ its property is bound or to ~~be filed as an exhibit to~~ which any of its property or ~~incorporated by reference in the Registration Statement by the Act, which~~ assets is ~~not described,~~ subject or any instrument filed or incorporated by reference ~~required;~~as an exhibit to the Annual Report on Form 10-K of the Company for the fiscal year ended December 31, 2022 or any subsequent Quarterly Report on Form 10-Q of the Company or any Current Report on Form 8-K of the Company with an execution or filing date after December 31, 2022, which affects in a material way the Company’s ability to perform its obligations under this Agreement, the Indenture or the Notes. (vii) The North Carolina Utilities Commission has issued appropriate orders with respect to the issuance and sale of the Notes in accordance with this Agreement, and, to the best of such counsel’s knowledge, such orders are still in effect; the issuance and sale of the Notes to the Underwriters are in conformity with the terms of such orders; and no other authorization, approval or consent of any other governmental body (other than in connection or compliance with the provisions of the securities or Blue Sky laws of any jurisdiction) is legally required for the issuance and sale of the Notes pursuant to this Agreement. (viii) ~~Statements set forth in~~ The Indenture has been duly authorized, executed and delivered by the ~~Prospectus~~ Company and qualified under the ~~heading "Description of Capital Stock," in~~ 1939 Act, and, assuming the ~~description~~ due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument of the ~~Common Stock contained~~ Company, enforceable against the Company in ~~the Company's Registration Statement on Form 8-A, filed~~ accordance with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings;its terms. (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein Notes have been duly ~~authorized~~ authorized, executed and issued by the Company and, when the same have been authenticated by ~~all necessary corporate action and this Agreement has been duly executed~~ the Trustee as specified in the Indenture and delivered ~~by and on behalf of the Company~~against payment therefor, ~~and is a legal,~~ will constitute valid and legally binding ~~agreement~~ obligations of the Company enforceable against the Company in accordance with ~~its~~ their terms, and are entitled to the benefits afforded by the Indenture in accordance with the terms of the Indenture and the Notes. (x) No consent, approval, authorization, order, registration or qualification of or with any federal or North Carolina governmental agency or body or, to such counsel’s knowledge, any federal or North Carolina court, which has not been obtained or taken and is not in full force and effect, is required to authorize or for the Company to consummate the transactions contemplated by this Agreement, except ~~that rights to indemnity~~ for such consents, approvals, authorizations, registrations or ~~contribution hereunder~~ qualifications as may be ~~limited~~ required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by ~~applicable law~~ the Underwriters. Such counsel may state that such counsel’s opinions in paragraphs (viii) and ~~except as~~ (ix) above are subject to ~~enforceability~~ the effects of ~~this Agreement may be limited by~~ bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and other similar laws relating to or affecting creditors' ’ rights generally, and by ~~equitable~~ general principles ~~limiting the right~~ of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and to ~~specific performance or other equitable relief; and,~~ an implied covenant of good faith and fair dealing. Such counsel shall state that nothing has come to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument ’s attention that has caused such counsel to ~~which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or~~ believe that each document incorporated by reference ~~as an exhibit to~~ in the Registration Statement~~; or (C) violate any statute~~, ~~ordinance~~the Pricing Disclosure Package and the Prospectus, ~~order~~when filed, ~~rule~~was not, ~~decree or regulation of any court~~on its face, ~~regulatory or governmental body~~appropriately responsive, ~~arbitrator~~in all material respects, ~~administrative agency or other instrumentality~~ to the requirements of the ~~United States having jurisdiction over~~ 1934 Act and the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the 1934 Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amendedRegulations. Such counsel shall also state that ~~they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their~~ nothing has come to such counsel’s attention that has caused such counsel ~~during which the content of~~ to believe that (i) the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness as of the ~~statements contained or incorporated by reference into~~ effective date with respect to the ~~Registration Statement or the Prospectus, on the basis~~ Underwriters pursuant to Rule 430B(f)(2) of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date1933 Act Regulations, contained any untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package at the Applicable Time contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) that the Prospectus, ~~or any amendment or supplement thereto including any document incorporated by reference therein,~~ as of its ~~issue~~ date ~~and as of~~ or at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading (~~misleading. Such counsel may also state that, except as otherwise expressly provided ~~that~~ in such opinion, such counsel ~~need express no belief regarding~~ does not assume any responsibility for the ~~financial~~ accuracy, completeness or fairness of the statements ~~and related schedules and other financial or statistical data~~ contained in or incorporated by reference into the Registration Statement, the Pricing Disclosure Package or the Prospectus and does not express any ~~amendment thereto including any document~~ opinion or belief as to (i) the financial statements or other financial and accounting data contained or incorporated by reference therein, or excluded therefrom, including with respect to compliance with XBRL interactive data requirements, (ii) the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention statement of the ~~attorneys~~ eligibility and qualification of the Trustee included in ~~such firm who have been involved in the preparation or review of~~ the Registration Statement (the “Form T-1”) or (iii) the information in the Pricing Disclosure Package and the Prospectus under the caption “Book-Entry System.” In rendering the foregoing opinion, such counsel may state that ~~would give them actual current knowledge~~ such counsel does not express any opinion concerning any law other than the law of the ~~existence or absence~~ State of ~~such matter in question. In rendering such opinion, counsel for the Company may rely~~North Carolina or, to the extent set forth in the foregoing opinions, the federal securities laws. Such counsel ~~deems~~ may also state that such ~~reliance proper,~~ counsel has relied as to certain factual matters ~~of fact upon certificates of~~ on information obtained from public officials, officers of the Company and ~~any governmental officials, and copies of all~~ other sources believed by such ~~certificates shall~~ counsel to be ~~furnished to the Representatives and for the Underwriters on or before each Closing Date~~reliable. (ef) ~~The Representatives~~ You shall have received an opinion of ~~Michael Best & Friedrich LLP, ▇~~▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇~~sel and Secretary~~▇ LLP, of counsel to the Company, ~~in their respective capacities as such~~dated the Closing Date, to the effect that: (i) ~~The representations~~ This Agreement has been duly authorized, executed and ~~warranties of~~ delivered by the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate;Company. (ii) The ~~Commission~~ Indenture has ~~not issued an order preventing or suspending~~ been duly authorized, executed and delivered by the ~~use~~ Company and, assuming the due authorization, execution and delivery thereof by the Trustee, is a valid and binding obligation of the ~~Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending~~ Company, enforceable against the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction;Company in accordance with its terms. (iii) ~~Each~~ The Notes have been duly authorized and executed by the Company, and, when duly authenticated by the Trustee and issued and delivered by the Company against payment therefor in accordance with the terms of this Agreement and the Indenture, the Notes will constitute valid and binding obligations of the ~~respective signatories has examined~~ Company, entitled to the ~~Registration Statement~~ benefits of the Indenture and enforceable against the Company in accordance with their terms. (iv) The statements set forth (i) under the caption “Description of Debt Securities” in the Base Prospectus and (ii) under the caption “Description of the Notes” in the Pricing Disclosure Package and the Prospectus, insofar as such statements purport to summarize certain provisions of the Indenture and ~~any amendment or supplement thereto~~the Notes, ~~including any documents filed under the Exchange Act and deemed to be incorporated by reference~~ fairly summarize such provisions in ~~the Registration Statement, and such documents contain~~ all material respects. (v) The statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in ~~an amended or supplemented prospectus or~~ the Pricing Disclosure Package and the Prospectus under the caption “Certain U.S. Federal Income Tax Considerations for Non-U.S. Holders,” insofar as such statements purport to constitute summaries of matters of United States federal income tax law, constitute accurate and complete summaries, in ~~an amendment~~ all material respects, subject to the ~~Registration Statement that~~ qualifications set forth therein. (vi) No Governmental Approval (as defined below), which has not been so obtained or taken and is not in full force and effect, is required to authorize, or is required for, the execution or delivery of this Agreement by the Company or the consummation by the Company of the transactions contemplated hereby; except for such consents, approvals, authorizations, orders, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters. (vii) The Company is not and, solely after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Prospectus, will not be subject to registration and regulation as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended. (viii) The execution and delivery by the Company of this Agreement and the Indenture and the consummation by the Company of the transactions contemplated hereby, including the issuance and sale of the Notes, will not violate or conflict with, or result in any contravention of, any Applicable Laws (as defined below) of the States of North Carolina and New York. (ix) The statements set foforth in the Pricing Disclosure Package and the Prospectus under the caption “Underwriting,” insofar as such statements purport to summarize certain provisions of this Agreement, fairly summarize such provisions in all material respects.

Appears in 1 contract

Sources: Underwriting Agreement (Piedmont Natural Gas Co Inc)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Debentures will be subject to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of the date hereof and as of each Closing Date~~Corporation herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Corporation made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Corporation of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Prospectus shall have been ~~declared effective~~ filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for filing by the ~~Commission not later than 5:30 p.m., Washington, D.C. time, on the date of this Agreement, or such later time~~ 1933 Act Regulations and ~~date as~~ in accordance herewith and each Permitted Free Writing Prospectus shall have been ~~consented to~~ filed by the ~~Representatives~~Corporation with the Commission within the applicable time periods prescribed for such filings by, ~~which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date~~ and ~~time requested~~ otherwise in ~~the acceleration request submitted on behalf~~ compliance with, Rule 433 of the ~~Representatives pursuant~~ 1933 Act Regulations. (b) On or after the Applicable Time and prior to ~~Rule 461 under~~ the ~~Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made;~~ Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued by and no proceedings for that purpose or pursuant to Section 8A of the ~~Commission or any state securities commission nor~~1933 Act shall have been instituted or, to the knowledge of the ~~Company~~Corporation or you, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be threatened by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) ~~Subsequent~~ On or after the Applicable Time and prior to the ~~execution~~ Closing Date, the rating assigned by ▇▇▇▇▇’▇ Investors Service, Inc., Standard & Poor’s Ratings Services or Fitch Ratings Inc. to any debt securities or preferred stock of the Corporation as of the date of this ~~Agreement,~~Agreement shall not have been lowered. (id) Since the respective most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus and up to the Closing Date, there shall not have ~~occurred~~ been any material adverse change in the condition of the Corporation, financial or ~~development involving~~otherwise, except as reflected in or ~~which could be reasonably expected~~ contemplated by the Prospectus, and, since such dates and up to ~~involve~~the Closing Date, ~~a Material Adverse Effect, whether or~~ there shall not ~~arising from~~ have been any material transaction entered into by the Corporation other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which ~~on the Company,~~ in ~~any such case described in clause (i) or (ii) above,~~ your reasonable judgment is ~~in the reasonable and good faith opinion of the Representatives~~ so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Shares~~ Debentures on the terms and in the manner contemplated in by the ~~Registration Statement~~ Pricing Disclosure Package and the Prospectus. (ce) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives You shall have received ~~opinions~~ an opinion of ~~Foley & Lardner, special couns~~▇▇▇▇▇▇ ▇. ▇~~r the Company (as to the matters set forth below in subsections (i)~~▇▇▇▇ III, ~~(ii)~~Esq., ~~(vi), (viii), (ix) and (xiv)), and the Vice President,~~ Deputy General Counsel ~~and Secretary~~ of the ~~Company (as to the matters set forth in subsections (iii)~~Corporation, ~~(iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and~~ dated the ~~First Closing Date or the Second~~ Closing Date~~, as the case may be~~, to the effect that: (i) ~~The Company~~ Each of the Principal Subsidiaries, other than Duke Energy Carolinas, LLC, has been duly incorporated and is validly existing ~~as a corporation~~ in good standing under the laws of ~~Delaware, with full~~ the jurisdiction of its incorporation has the respective corporate power and authority and foreign qualifications necessary to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate own its properties and to conduct its business as ~~presently conducted~~ described in the Pricing Disclosure Package and the Prospectus. Duke Energy Carolinas, LLC has been duly organized and is validly existing and in good standing as a limited liability company under the laws of the State of North Carolina and has full limited liability company power and authority necessary to own its properties and to conduct its business as described in the ~~Prospectus~~ Pricing Disclosure Package and the ~~Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all~~ Prospectus. (ii) Each of the ~~issued~~ Corporation and ~~outstanding capital stock~~ the Principal Subsidiaries is duly qualified to do business in each jurisdiction in which the ownership or leasing of its property or the conduct of its business requires such qualification, except where the failure to so qualify, considering all such cases in the aggregate, does not have a material adverse effect on the business, properties, financial condition or results of operations of the ~~Significant Subsidiary;~~Corporation and its subsidiaries taken as a whole. (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (viiii) The Registration Statement ~~has become~~ became effective ~~under~~ upon filing with the Commission pursuant to Rule 462 of the 1933 Act Regulations, and, to the best of such counsel's ’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened by under the ~~Commission;~~ 1933 Act. (iv) The descriptions in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package and the Prospectus ~~and~~ of any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings ~~that~~ are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, accurate and ~~in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein,~~ fairly present the information ~~called for with respect~~ required to be shown, and such counsel does not know of any litigation or any legal ~~matters~~or governmental proceeding instituted or threatened against the Corporation or any of its Principal Subsidiaries or any of their respective properties that would be required to be disclosed in the Registration Statement, ~~documents~~ the Pricing Disclosure Package or the Prospectus and ~~proceedings;~~is not so disclosed. (ixv) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this This Agreement has been duly authorized, executed and delivered by ~~and on behalf of~~ the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD);Corporation. (xvi) The execution, delivery and performance by the Corporation of this ~~Agreement by~~ Agreement, the ~~Company will not: (A) violate any provisions~~ Indenture and the issue and sale of the ~~Articles of Incorporation~~ Debentures will not violate or ~~Bylaws of the Company or the Significant Subsidiary; (B) violate~~ contravene any of the provisions ofof the Certificate of Incorporation or By-Laws of the Corporation or any statute or any order, rule or regulation of which such counsel is aware of any court or governmental agency or body having jurisdiction over the Corporation or any of its Principal Subsidiaries or any of their respective property, nor will such action conflict with or result in a breach or violation of any of the ~~breach, modification~~ terms or ~~termination~~ provisions of, or constitute a default ~~under,~~ under any ~~agreement, lease, franchise, license,~~ indenture~~, permit~~, mortgage, deed of trust, ~~other evidence of indebtedness~~ loan agreement or other agreement or instrument known to such counsel to which the ~~Company~~ Corporation or ~~the Significant Subsidiary~~ any of its Principal Subsidiaries is a party or by which any of them or their respective property is bound or to which any of its property or assets is subject which affects in a material way the ~~Company~~ Corporation’s ability to perform its obligations under this Agreement, the Indenture and the Debentures. (vii) The Indenture has been duly authorized, executed and delivered by the Corporation and, assuming the due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument of the Corporation, enforceable against the Corporation in accordance with its terms. (viii) The Debentures have been duly authorized, executed and issued by the Corporation and, when authenticated by the Trustee, in the manner provided in the Indenture and delivered against payment therefor, will constitute valid and legally binding obligations of the Corporation enforceable against the Corporation in accordance with their terms, and are entitled to the benefits afforded by the Indenture in accordance with the terms of the Indenture and the Debentures. (ix) No consent, approval, authorization, order, registration or ~~the Significant Subsidiary~~qualification is required to authorize, or ~~any~~ for the Corporation to consummate the transactions contemplated by this Agreement, except for such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of ~~their respective owned~~ the Debentures by the Underwriters and except as required in Condition 7.6 of the order of the North Carolina Utilities Commission dated June 29, 2012, in Docket No. E-7, sub 986, which consent has been obtained. Such counsel may state that his opinions in paragraphs (vii) and (viii) are subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or ~~leased property~~ affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is ~~bound, and which is filed~~ considered in a proceeding in equity or at law). Such counsel shall state that nothing has come to his attention that has caused him to believe that each document incorporated by reference ~~as an exhibit to~~ in the Registration Statement~~; or (C) violate any statute~~, ~~ordinance~~the Pricing Disclosure Package and the Prospectus, ~~order~~when filed, ~~rule~~was not, ~~decree or regulation of any court~~on its face, ~~regulatory or governmental body~~appropriately responsive, ~~arbitrator~~in all material respects, ~~administrative agency or other instrumentality~~ to the requirements of the ~~United States having jurisdiction over~~ 1934 Act and the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the 1934 Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amendedRegulations. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information nothing has come to his attention that ~~was developed in the course of the performance of such services, they have no reason~~ has caused him to believe that (i) the Registration ~~Statement~~ Statement, including ~~any document incorporated by reference therein~~the Rule 430B Information, on as of its effective ~~date~~date and at each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations, contained any untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package at the Applicable Time contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) that the ~~Prospectus,~~ Prospectus or any amendment or supplement ~~thereto including any document incorporated by reference therein~~thereto, as of ~~its issue~~ the date it was filed with, or transmitted for filing to, the Commission and ~~as of~~ at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not ~~misleading (~~misleading. Such counsel may also state that, except as otherwise expressly provided ~~that~~ in such ~~counsel need express no belief regarding~~ opinion, he does not assume any responsibility for the ~~financial~~ accuracy, completeness or fairness of the statements ~~and related schedules and other financial or statistical data~~ contained in or incorporated by reference into the Registration Statement, the Pricing Disclosure Package or the Prospectus and does not express any ~~amendment thereto including any document~~ opinion or belief as to (i) the financial statements or other financial data contained or incorporated by reference therein, or including XBRL interactive data, (ii) the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention statement of the ~~attorneys~~ eligibility and qualification of the Trustee included in ~~such firm who have been involved in the preparation or review of~~ the Registration Statement (the “Form T-1”) or (iii) the information in the Prospectus under the caption “Book-Entry System.” In rendering the foregoing opinion, such counsel may state that ~~would give them actual current knowledge~~ he does not express any opinion concerning any law other than the law of the ~~existence or absence~~ State of ~~such matter in question. In rendering such opinion~~North Carolina and may rely as to all matters of the laws of the States of South Carolina, Ohio, Indiana and Florida on appropriate counsel ~~for the Company may rely,~~ reasonably satisfactory to the ~~extent~~ Representatives, which may include the Corporation’s other “in-house” counsel). Such counsel ~~deems such reliance proper,~~ may also state that he has relied as to certain factual matters ~~of fact upon certificates of~~ on information obtained from public officials, officers of the ~~Company~~ Corporation and ~~any governmental officials, and copies of all such certificates shall~~ other sources believed by him to be ~~furnished to the Representatives and for the Underwriters on or before each Closing Date~~responsible. (ef) ~~The Representatives~~ You shall have received an opinion of ~~Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the~~ ▇▇▇▇▇▇▇▇~~ters~~, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ~~▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President,~~ & ▇▇▇▇▇▇~~▇ ▇▇▇▇sel and Secretary~~, of P.A., counsel to the ~~Company~~Corporation, ~~in their respective capacities as such~~dated the Closing Date, to the effect that: (i) ~~The representations~~ This Agreement has been duly authorized, executed and ~~warranties of~~ delivered by the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate;Corporation. (ii) The ~~Commission has not issued an order preventing or suspending~~ execution and delivery by the ~~use~~ Corporation of this Agreement and the consummation by the Corporation of the ~~Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending~~ transactions contemplated hereby, including the ~~effectiveness~~ issuance and sale of the ~~Registration Statement has been issued; and to~~ Debentures, will not (i) conflict with the ~~knowledge~~ Corporation’s certificate of incorporation or Bylaws, (ii) constitute a violation of, or a breach of or default under, the terms of any of the ~~respective signatories, no proceedings for that purpose have been initiated~~ contracts set forth on Schedule D hereto or ~~are pending under the Act or under the Blue Sky Laws of any jurisdiction;~~ (iii) ~~Each~~ violate or conflict with, or result in any contravention of, any Applicable Law. “Applicable Law” means the General Corporation Law of the ~~respective signatories has examined~~ State of Delaware and those laws, rules and regulations of the ~~Registration Statement~~ State of New York and those federal laws, rules and regulations of the United States of America, in each case that, in such counsel’s experience, are normally applicable to transactions of the type contemplated by this Agreement (other than the United States federal securities laws, state securities or blue sky laws, antifraud laws and the ~~Prospectus,~~ rules and ~~any amendment or supplement thereto, including any documents filed under~~ regulations of the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set foFinancial Industry Regulatory Authority).

Appears in 1 contract

Sources: Underwriting Agreement (Duke Energy CORP)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Bonds will be subject to the accuracy of the representations and warranties on the part of the Company ~~herein set forth as of the date hereof and as of each Closing Date~~herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Company made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Prospectus shall have been ~~declared effective~~ filed by the Company with the Commission ~~not later than 5:30 p.m., Washington, D.C. time, on~~ pursuant to Rule 424(b) within the ~~date of this Agreement, or such later~~ applicable time period prescribed for filing by the 1933 Act Regulations and ~~date as~~ in accordance herewith and each Permitted Free Writing Prospectus shall have been ~~consented to~~ filed by the ~~Representatives~~Company with the Commission within the applicable time periods prescribed for such filings by, ~~which consent shall be deemed~~ and otherwise in compliance with, Rule 433. (b) At or after the Applicable Time and prior to ~~have been given if~~ the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued by and no proceedings for that purpose or pursuant to Section 8A of the ~~Commission or any state securities commission nor~~1933 Act shall have been instituted or, to the knowledge of the ~~Company~~Company or you, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be threatened by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) ~~Subsequent~~ At or after the Applicable Time and prior to the ~~execution~~ Closing Date, the rating assigned by M▇▇▇▇’▇ Investors Service, Inc. or S&P Global Ratings (or any of their successors) to any debt securities or preferred stock of the Company as of the date of this ~~Agreement,~~Agreement shall not have been lowered. (id) Since the respective most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus and up to the Closing Date, there shall not have ~~occurred~~ been any material adverse change in the condition of the Company and its subsidiary, taken as a whole, financial or ~~development involving~~otherwise, except as reflected in or ~~which could be reasonably expected~~ contemplated by the Pricing Disclosure Package and the Prospectus, and since such dates and up to ~~involve~~the Closing Date, ~~a Material Adverse Effect, whether or~~ there shall not ~~arising from~~ have been any material transaction entered into by the Company other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which ~~on the Company,~~ in ~~any such case described in clause (i) or (ii) above,~~ your reasonable judgment is ~~in the reasonable and good faith opinion of the Representatives~~ so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Shares~~ Bonds on the terms and in the manner contemplated in by the ~~Registration Statement~~ Pricing Disclosure Package and the Prospectus. (ce) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives You shall have received ~~opinions~~ an opinion of ~~Foley & Lardner, special couns~~E▇▇▇▇▇▇▇▇ ▇▇r ▇▇▇▇▇▇, Esq., Deputy General Counsel of Duke Energy Business Services LLC, the ~~Company~~ service company subsidiary of Duke Energy Corporation (as who in such capacity provides legal services to the ~~matters set forth below in subsections~~ Company) (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed or other appropriate counsel reasonably satisfactory to the Representatives, ~~as the representatives of the Underwriters~~which may include Duke Energy Corporation’s other “in-house” counsel), ~~and~~ dated the ~~First Closing Date or the Second~~ Closing Date~~, as the case may be~~, to the effect that: (i) The Company is a limited liability company duly organized and validly existing ~~as a corporation in good standing~~ under the laws of ~~Delaware~~the State of Indiana, with ~~full corporate~~ power and authority (limited liability company and other) to ~~own, lease and operate~~ own its properties and conduct its business as ~~presently conducted and as~~ described in the Pricing Disclosure Package and the Prospectus and ~~the Registration Statement;~~to enter into and perform its obligations under this Agreement. (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been Company’s sole subsidiary is a corporation duly ~~authorized~~ organized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing ~~as a corporation in good standing or active status~~ under the laws of ~~Tennessee, with full~~ Indiana and has due corporate ~~power~~ and governmental authority to ~~own~~carry on the business in which it is engaged, ~~lease and operate its properties and to conduct its business as presently conducted and as described~~ except where the failure would not, singularly or in the ~~Prospectus and~~ aggregate, reasonably be expected to have a material adverse effect on the ~~Registration Statement; to such counsel's knowledge~~consolidated financial position, ~~the Company owns directly~~ member’s equity, results of operations, business or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement prospects of the Company ~~enforceable against the Company in accordance with~~ and its ~~terms~~subsidiary, ~~except that rights to indemnity or contribution hereunder may be limited by applicable law and except~~ taken as ~~to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally~~a whole, and ~~by equitable principles limiting~~ to own and operate the ~~right to specific performance or other equitable relief; and, to~~ properties in use in such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD);business. (xiii) The execution, delivery and performance of this ~~Agreement~~ Agreement, the First Mortgage Indenture and the Bonds and compliance by the Company with its obligations hereunder and thereunder (x) will ~~not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of~~not conflict with, or result in any charge or encumbrance upon any of the ~~breach, modification or termination~~ assets of the Company (other than pursuant to the First Mortgage Indenture) pursuant to the terms of, or constitute a default under, any agreement, ~~lease~~indenture or instrument known to such counsel, ~~franchise, license, indenture, permit, mortgage, deed~~ or result in a violation of ~~trust, other evidence~~ the Articles or Operating Agreement of ~~indebtedness or other instrument to which~~ the Company or (as in effect on the ~~Significant Subsidiary is a party or by which the Company or the Significant Subsidiary,~~ Closing Date) or any ~~of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance,~~ order, ~~rule, decree~~ rule or regulation (also as in effect on the Closing Date) of any ~~court, regulatory~~ court or governmental ~~body, arbitrator, administrative~~ agency ~~or other instrumentality of the United States~~ having jurisdiction over the Company and (y) the issuance of the Bonds in accordance with the First Mortgage Indenture and the sale of the Bonds in accordance with this Agreement, do not and will not result in any violation by the Company of any of the terms or provisions of the ~~Significant Subsidiary (assuming compliance with all applicable federal and state securities laws);~~Articles or Operating Agreement, or of the First Mortgage Indenture, or any mortgage or other agreement or instrument known to such counsel by which the Company is bound. (xiiv) ~~To such counsel's knowledge~~The First Mortgage Indenture is in due and proper form, ~~there are no holders of Common Stock or other securities~~ has been duly and validly authorized by all necessary limited liability company action, has been duly executed and delivered by the Company, qualified under the 1939 Act, and, assuming due authorization, execution and delivery by the Trustee, the First Mortgage Indenture is a valid and binding instrument of the Company, enforceable in accordance with its terms, except as (i) the enforceability thereof may be limited by bankruptcy, insolvency, or ~~securities that are convertible or exchangeable into Common Stock or~~ similar laws affecting mortgagees’ and other ~~securities~~ creditors’ rights generally, and (ii) the rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. (v) The issue of the Bonds by the Company in accordance with the terms of the First Mortgage Indenture has been duly authorized by all necessary limited liability company action; when duly executed by the Company, ~~that have rights~~ authenticated by the Trustee and delivered to and paid for by the Underwriters pursuant to this Agreement, the Bonds will constitute the legal, valid and binding obligations of the Company enforceable in accordance with their terms, secured by the lien of and entitled to the ~~registration~~ benefits provided by the First Mortgage Indenture, except as (i) the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting mortgagees’ and other creditors’ rights generally, and (ii) the rights of ~~such securities under~~ acceleration and the ~~Act or any Blue Sky Laws;~~availability of equitable remedies may be limited by equitable principles of general applicability. (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xivvi) The Company is has good and marketable title to the properties, rights and assets described in and conveyed by the First Mortgage Indenture and not ~~an "investment company,"~~ released by the Trustee from the lien thereof prior to the time of delivery of the Bonds, subject only to the lien of the First Mortgage Indenture, to “permitted liens” as ~~such term is~~ defined in the ~~Investment~~ First Mortgage Indenture and to certain encumbrances and defects in respect of certain properties in service the aggregate book value of which is not deemed material; the description in the First Mortgage Indenture of such properties, rights and assets is adequate to constitute the First Mortgage Indenture a lien thereon; the First Mortgage Indenture, subject only to the matters referred to above, constitutes a valid and direct first lien on such properties, rights and assets, which include substantially all permanent fixed properties and franchises of the Company ~~Act~~ (except that real estate which is not used or useful in the public utility business of ~~1940~~the Company is excluded from the lien of the First Mortgage Indenture by the provisions thereof); and all permanent fixed properties and franchises acquired by the Company subsequent to the time of issuance of the Bonds (except that in certain cases real estate which is not used or useful in the public utility business of the Company is excluded from the lien of the First Mortgage Indenture by the provisions thereof) will be subject to the lien of the First Mortgage Indenture, subject, however, to “permitted liens” as ~~amended. Such counsel shall also state that they have participated~~ defined in ~~conferences with officers~~ the First Mortgage Indenture and liens, if any, existing or placed on such properties at the time of acquisition thereof by the Company. (vii) The First Mortgage Indenture, other ~~representatives~~ than the Supplemental Indenture, has been duly filed for record in such manner and in such places as are required by law in order to give constructive notice of, and to establish, preserve and protect the lien of, the First Mortgage Indenture on all property of the Company of every kind referred to in the First Mortgage Indenture as subject to the lien thereof. (viii) Except as referred to in the Pricing Disclosure Package and the Prospectus, there is no action, suit or proceeding, inquiry or investigation, at law or in equity or before or by any court, public board or body, pending or, to such counsel’s knowledge, threatened against or affecting the Company, ~~representatives~~ wherein an unfavorable decision, ruling or finding would (i) materially and adversely affect the condition (financial or otherwise), results of ~~auditors for~~ operations, business or properties of the Company or (ii) materially and ~~representatives~~ adversely affect the transactions contemplated by this Agreement, or which would adversely affect the validity or enforceability of the ~~Underwriters and their counsel during which~~ First Mortgage Indenture or the ~~content of~~ Bonds. The descriptions in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package and the Prospectus of any legal or governmental proceedings are accurate and ~~related matters were discussed and reviewed~~fairly present the information required to be shown, and ~~that, although~~ such counsel does not know of any litigation or any legal or governmental proceeding instituted or threatened against the Company or any of its properties that would be required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus and is not ~~verifying~~so disclosed. (ix) An order of the IURC relating to the issuance of the Bonds has been duly entered and, to such counsel’s knowledge, has not been modified or repealed in any respect and is ~~not passing upon~~ in full force and ~~does not assume~~ effect. The issuance and sale of the Bonds to the Underwriters are in conformity with the terms of such order. Except as may be required under the 1933 Act or the securities or Blue Sky laws of any ~~responsibility~~ jurisdiction, no further consent, approval, authorization or order of, or registration or filing with, any court or governmental or public agency, authority or body is required with respect to the Company for the ~~accuracy~~execution, ~~completeness~~ delivery and performance of this Agreement, the First Mortgage Indenture or ~~fairness~~ the Bonds, the issuance by the Company of the ~~statements contained or incorporated by reference into the Registration Statement~~ Bonds or the ~~Prospectus, on~~ consummation by the ~~basis~~ Company of the ~~information~~ transactions contemplated by this Agreement, the First Mortgage Indenture or the Bonds. (x) This Agreement has been duly authorized, executed and delivered by the Company. In addition, such counsel shall state that ~~was developed in the course of the performance of~~ no facts have come to such ~~services, they~~ counsel’s attention that have ~~no reason~~ caused such counsel to believe that the Registration ~~Statement including any document incorporated by reference therein~~Statement, ~~on its effective date~~at the Applicable Time, contained ~~any~~ an untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, ~~or any amendment or supplement thereto including any document incorporated by reference therein,~~ as of its ~~issue~~ date and as of the Closing Date, contained or contains ~~any~~ an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (~~provided~~ except that in each case such counsel need not express an opinion as to (i) the financial statements and other financial and accounting data included or incorporated by reference therein or excluded therefrom, including with respect to compliance with XBRL interactive data requirements, (ii) the statement of the eligibility and qualification of the Trustee included in the Registration Statement or (iii) the information in the Prospectus Supplement under the caption “Book-Entry System”). Such counsel shall further state that, in addition, no facts have come to such counsel’s attention that have caused such counsel to believe that the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that such counsel need not express ~~no belief regarding~~ an opinion as to (i) the financial statements and ~~related schedules and~~ other financial and accounting data included or ~~statistical data contained in the Registration Statement, any amendment thereto including any document~~ incorporated by reference ~~therein~~therein or excluded therefrom, including with respect to XBRL interactive data requirements, or (ii) the ~~Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein~~information in the Prospectus Supplement under the caption “Book-Entry System”). To Such counsel shall expressly authorize the ~~extent that any of such opinions are stated~~ Underwriters to ~~be based upon~~ rely on such counsel~~'s knowledge or to be given "~~’s opinion dated the Closing Date delivered to the ~~knowledge of such counsel," such qualification shall signify that no information has come~~ Trustee pursuant to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing DateFirst Mortgage Indenture. (ef) ~~The Representatives~~ You shall have received an opinion of ~~Michael Best & Friedrich LLP,~~ H▇▇▇▇▇ A▇▇▇▇▇▇ ▇▇~~▇ the~~ ▇▇~~▇▇▇▇▇▇ters~~▇ LLP, counsel to the Company, dated the ~~First Closing Date or the Second~~ Closing Date, ~~as the case may be, with respect~~ to the effect that: (i) The Supplemental Indenture has been duly authorized, executed and delivered by the Company, and assuming due authorization, execution and delivery by the Trustee, the First Mortgage Indenture constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting mortgagees’ and other creditors’ rights generally from time to time in effect, and to general principals of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law). (ii) The Bonds have been duly authorized and, when executed and authenticated in accordance with the provisions of the Original Mortgage and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Original Mortgage and enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting mortgagees’ and other creditors’ rights generally from time to time in effect and to general principals of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law). (iii) This Agreement has been duly authorized, executed and delivered by the Company. (iv) The statements set forth (i) under the caption “Description of First Mortgage Bonds” in the Base Prospectus and (ii) under the caption “Description of the Mortgage Bonds” in the Pricing Disclosure Package and the Prospectus, insofar as such statements purport to summarize certain provisions of the First Mortgage Indenture and the Bonds, fairly summarize such provisions in all material respects. (v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Certain U.S. Federal Income Tax Considerations for Non-U.S. Holders,” insofar as such statements purport to constitute summaries of matters of United States federal income tax law, constitute accurate and complete summaries, in all material respects, subject to the qualifications set forth therein. (vi) The Company is not, and solely after giving effect to the offering and sale of the ~~Shares hereunder~~Bonds and the application of the proceeds thereof as described in the Prospectus, will not be subject to registration and regulation as an “investment company” as such term is defined in the ~~Registration Statement~~ Investment Company Act of 1940, as amended. In rendering the foregoing opinions, such counsel may state that it has relied as to certain factual matters on information obtained from public officials, officers and ~~other related matters as~~ representatives of the ~~Representatives may reasonably require~~Company and has assumed that the signatures on all documents examined by such counsel are genuine, and ~~the Company shall have furnished to~~ that such counsel has not independently verified such ~~documents and shall have exhibited to them such papers and records as~~ factual matters or assumptions. In giving their opinion, such counsel ~~reasonably request for~~ may rely on the ~~purpose~~ opinion of ~~enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇~~ E▇~~▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President,~~ ▇▇▇▇▇▇▇ ▇▇▇▇~~sel and Secretary~~▇▇▇▇, Esq., Deputy General Counsel of Duke Energy Business Services, LLC, the ~~Company,~~ service company subsidiary of Duke Energy Corporation (who in ~~their respective capacities as such,~~ such capacity provides legal services to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set foC

Appears in 1 contract

Sources: Underwriting Agreement (Duke Energy Indiana, LLC)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Bonds will be subject to the accuracy of the representations and warranties on the part of the Company ~~herein set forth as of the date hereof and as of each Closing Date~~herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Company made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Prospectus shall have been ~~declared effective~~ filed by the Company with the Commission ~~not later than 5:30 p.m.~~pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the 1933 Act Regulations, ~~Washington, D.C. time, on the date of this Agreement, or such later time~~ and ~~date as~~ each Permitted Free Writing Prospectus shall have been ~~consented to~~ filed by the ~~Representatives, which consent shall be deemed to have been given if~~ Company with the ~~Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives~~ Commission pursuant to Rule ~~461 under~~ 433 within the ~~Act; all filings required~~ applicable time period prescribed for such filing by ~~Rules 424(b~~the 1933 Act Regulations (to the extent so required). (b) On or after the Applicable Time and ~~430A under~~ prior to the ~~Act shall have been timely made;~~ Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued by and no proceedings for that purpose or pursuant to Section 8A of the ~~Commission or any state securities commission nor~~1933 Act shall have been instituted or, to the knowledge of the ~~Company~~Company or you, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be threatened by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) ~~Subsequent~~ On or after the Applicable Time and prior to the ~~execution~~ Closing Date, the rating assigned by ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Ratings Services (or any of their successors) to any debt securities or preferred stock of the Company as of the date of this ~~Agreement,~~Agreement shall not have been lowered. (id) Since the respective most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus and up to the Closing Date, there shall not have ~~occurred~~ been any material adverse change in the condition of the Company and its subsidiary, taken as a whole, financial or ~~development involving~~otherwise, except as reflected in or ~~which could be reasonably expected~~ contemplated by the Pricing Disclosure Package and the Prospectus, and since such dates and up to ~~involve~~the Closing Date, ~~a Material Adverse Effect, whether or~~ there shall not ~~arising from~~ have been any material transaction entered into by the Company other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which ~~on the Company,~~ in ~~any such case described in clause (i) or (ii) above,~~ your reasonable judgment is ~~in the reasonable and good faith opinion of the Representatives~~ so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Shares~~ Bonds on the terms and in the manner contemplated in by the ~~Registration Statement~~ Pricing Disclosure Package and the Prospectus. (ce) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives You shall have received ~~opinions~~ an opinion of ~~Foley & Lardner, special couns~~J. ▇▇▇▇▇▇▇ ▇▇~~r the Company (as to the matters set forth below in subsections (i)~~▇▇▇▇, ~~(ii)~~Esq., ~~(vi), (viii), (ix) and (xiv)), and the Vice President,~~ Associate General Counsel ~~and Secretary~~ of Duke Energy Business Services, LLC, the service company affiliate of the ~~Company (as to the matters set forth in subsections (iii)~~Company, ~~(iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and~~ dated the ~~First Closing Date or the Second~~ Closing Date~~, as the case may be~~, to the effect that: (i) The Company is a corporation duly organized and validly existing ~~as a corporation~~ in good standing under the laws of ~~Delaware~~the State of Indiana, with ~~full corporate~~ power and authority (corporate and other) to ~~own, lease and operate~~ own its properties and conduct its business as ~~presently conducted and as~~ described in the Pricing Disclosure Package and the Prospectus and ~~the Registration Statement;~~to enter into and perform its obligations under this Agreement. (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been Company’s sole subsidiary is a corporation duly ~~authorized~~ organized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing ~~as a corporation~~ in good standing ~~or active status~~ under the laws of ~~Tennessee, with full~~ Indiana and has due corporate ~~power~~ and governmental authority to ~~own~~carry on the business in which it is engaged, ~~lease and operate its properties and to conduct its business as presently conducted and as described~~ except where the failure would not, singularly or in the ~~Prospectus and~~ aggregate, reasonably be expected to have a material adverse effect on the ~~Registration Statement; to such counsel's knowledge~~consolidated financial position, ~~the Company owns directly~~ stockholder’s equity, results of operations, business or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement prospects of the Company ~~enforceable against the Company in accordance with~~ and its ~~terms~~subsidiary, ~~except that rights to indemnity or contribution hereunder may be limited by applicable law and except~~ taken as ~~to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally~~a whole, and ~~by equitable principles limiting~~ to own and operate the ~~right to specific performance or other equitable relief; and, to~~ properties in use in such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD);business. (xiii) The execution, delivery and performance of this ~~Agreement~~ Agreement, the First Mortgage Indenture and the Bonds and compliance by the Company with its obligations hereunder and thereunder (x) will ~~not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of~~not conflict with, or result in any charge or encumbrance upon any of the ~~breach, modification or termination~~ assets of the Company (other than pursuant to the First Mortgage Indenture) pursuant to the terms of, or constitute a default under, any agreement, ~~lease~~indenture or instrument known to such counsel, ~~franchise, license, indenture, permit, mortgage, deed~~ or result in a violation of ~~trust, other evidence~~ the Articles or By-Laws of ~~indebtedness or other instrument to which~~ the Company or (as in effect on the ~~Significant Subsidiary is a party or by which the Company or the Significant Subsidiary,~~ Closing Date) or any ~~of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance,~~ order, ~~rule, decree~~ rule or regulation (also as in effect on the Closing Date) of any ~~court, regulatory~~ court or governmental ~~body, arbitrator, administrative~~ agency ~~or other instrumentality of the United States~~ having jurisdiction over the Company and (y) the issuance of the Bonds in accordance with the First Mortgage Indenture and the sale of the Bonds in accordance with this Agreement, do not and will not result in any violation by the Company of any of the terms or provisions of the ~~Significant Subsidiary (assuming compliance with all applicable federal and state securities laws);~~Articles or By-Laws, or of the First Mortgage Indenture, or any mortgage or other agreement or instrument known to such counsel by which the Company is bound. (xiiv) ~~To such counsel's knowledge~~The First Mortgage Indenture is in due and proper form, ~~there are no holders of Common Stock or other securities~~ has been duly and validly authorized by all necessary corporate action, has been duly executed and delivered by the Company, qualified under the 1939 Act, and, assuming due authorization, execution and delivery by the Trustee, the First Mortgage Indenture is a valid and binding instrument of the Company, enforceable in accordance with its terms, except as (i) the enforceability thereof may be limited by bankruptcy, insolvency, or ~~securities that are convertible or exchangeable into Common Stock or other securities~~ similar laws affecting creditors’ rights generally, and (ii) the rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. (v) The issue of the Bonds by the Company in accordance with the terms of the First Mortgage Indenture has been duly authorized by all necessary corporate action; when duly executed by the Company, ~~that have rights~~ authenticated by the Trustee and delivered to and paid for by the Underwriters pursuant to this Agreement, the Bonds will constitute the legal, valid and binding obligations of the Company enforceable in accordance with their terms, secured by the lien of and entitled to the ~~registration~~ benefits provided by the First Mortgage Indenture, except as (i) the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting creditors’ rights generally, and (ii) the rights of ~~such securities under~~ acceleration and the ~~Act or any Blue Sky Laws;~~availability of equitable remedies may be limited by equitable principles of general applicability. (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xivvi) The Company is has good and marketable title to the properties, rights and assets described in and conveyed by the First Mortgage Indenture and not ~~an "investment company,"~~ released by the Trustee from the lien thereof prior to the time of delivery of the Bonds, subject only to the lien of the First Mortgage Indenture, to “permitted liens” as ~~such term is~~ defined in the ~~Investment~~ First Mortgage Indenture and to certain encumbrances and defects in respect of certain properties in service the aggregate book value of which is not deemed material; the description in the First Mortgage Indenture of such properties, rights and assets is adequate to constitute the First Mortgage Indenture a lien thereon; the First Mortgage Indenture, subject only to the matters referred to above, constitutes a valid and direct first lien on such properties, rights and assets, which include substantially all permanent fixed properties and franchises of the Company ~~Act~~ (except that real estate which is not used or useful in the public utility business of ~~1940~~the Company is excluded from the lien of the First Mortgage Indenture by the provisions thereof); and all permanent fixed properties and franchises acquired by the Company subsequent to the time of issuance of the Bonds (except that in certain cases real estate which is not used or useful in the public utility business of the Company is excluded from the lien of the First Mortgage Indenture by the provisions thereof) will be subject to the lien of the First Mortgage Indenture, subject, however, to “permitted liens” as ~~amended. Such counsel shall also state that they have participated~~ defined in ~~conferences with officers~~ the First Mortgage Indenture and liens, if any, existing or placed on such properties at the time of acquisition thereof by the Company. (vii) The First Mortgage Indenture, other ~~representatives~~ than the Fifty-Eighth Supplemental Indenture, dated as of December 18, 2008, and the Fifty-Ninth Supplemental Indenture, has been duly filed for record in such manner and in such places as are required by law in order to give constructive notice of, and to establish, preserve and protect the lien of, the First Mortgage Indenture on all property of the Company of every kind referred to in the First Mortgage Indenture as subject to the lien thereof. (viii) Except as referred to in the Pricing Disclosure Package and the Prospectus, there is no action, suit or proceeding, inquiry or investigation, at law or in equity or before or by any court, public board or body, pending or, to such counsel’s knowledge, threatened against or affecting the Company, ~~representatives~~ wherein an unfavorable decision, ruling or finding would (i) materially and adversely affect the condition (financial or otherwise), results of ~~auditors for~~ operations, business or properties of the Company or (ii) materially and ~~representatives~~ adversely affect the transactions contemplated by this Agreement, or which would adversely affect the validity or enforceability of the ~~Underwriters and their counsel during which~~ First Mortgage Indenture or the ~~content of~~ Bonds. The descriptions in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package and the Prospectus of any legal or governmental proceedings are accurate and ~~related matters were discussed and reviewed~~fairly present the information required to be shown, and ~~that, although~~ such counsel does not know of any litigation or any legal or governmental proceeding instituted or threatened against the Company or any of its properties that would be required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus and is not ~~verifying~~so disclosed. (ix) An order of the IURC relating to the issuance of the Bonds has been duly entered and, to such counsel’s knowledge, has not been modified or repealed in any respect and is ~~not passing upon~~ in full force and ~~does not assume~~ effect. The issuance and sale of the Bonds to the Underwriters are in conformity with the terms of such order. Except as may be required under the 1933 Act or the securities or Blue Sky laws of any ~~responsibility~~ jurisdiction, no further consent, approval, authorization or order of, or registration or filing with, any court or governmental or public agency, authority or body is required with respect to the Company for the ~~accuracy~~execution, ~~completeness~~ delivery and performance of this Agreement, the First Mortgage Indenture or ~~fairness~~ the Bonds, the issuance by the Company of the ~~statements contained or incorporated by reference into the Registration Statement~~ Bonds or the ~~Prospectus, on~~ consummation by the ~~basis~~ Company of the ~~information~~ transactions contemplated by this Agreement, the First Mortgage Indenture or the Bonds. In addition, such counsel shall state that ~~was developed in the course of the performance of~~ no facts have come to such ~~services, they~~ counsel’s attention that have ~~no reason~~ caused such counsel to believe that the Registration ~~Statement including any document incorporated by reference therein~~Statement, ~~on its effective date~~at the Applicable Time, contained ~~any~~ an untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, ~~or any amendment or supplement thereto including any document incorporated by reference therein,~~ as of its ~~issue~~ date and as of the Closing Date, contained or contains ~~any~~ an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (~~provided~~ except that in each case such counsel need not express an opinion as to the financial statements and other financial data included or incorporated by reference therein or excluded therefrom). Such counsel shall further state that, in addition, no facts have come to such counsel’s attention that have caused such counsel to believe that the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that such counsel need not express ~~no belief regarding~~ an opinion as to the financial statements and ~~related schedules and~~ other financial data included or ~~statistical data contained in the Registration Statement, any amendment thereto including any document~~ incorporated by reference ~~therein,~~ therein or ~~the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein~~excluded therefrom). To Such counsel shall expressly authorize the ~~extent that any of such opinions are stated~~ Underwriters to ~~be based upon~~ rely on such counsel~~'s knowledge or to be given "~~’s opinion dated the Closing Date delivered to the ~~knowledge of such counsel," such qualification shall signify that no information has come~~ Trustee pursuant to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing DateFirst Mortgage Indenture. (ef) ~~The Representatives~~ You shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇~~sel and Secretary~~▇ ▇▇▇▇ LLC, of counsel to the Company, ~~in their respective capacities as such~~dated the Closing Date, to the effect that: (i) The ~~representations~~ Fifty-Ninth Supplemental Indenture has been duly authorized, executed and ~~warranties~~ delivered by the Company, and assuming due authorization, execution and delivery by the Trustee, the First Mortgage Indenture is a valid and binding instrument of the Company ~~set forth~~ enforceable in ~~Section 2 hereof are true and correct~~ accordance with its terms, except as of (i) the ~~date of this Agreement and as of the date of such certificate~~enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally, and (ii) the ~~Company has complied in all material respects with all~~ rights of acceleration and the ~~agreements and satisfied all the conditions to~~ availability of equitable remedies may be ~~performed or satisfied~~ limited by ~~it at or prior to the date~~ equitable principles of ~~such certificate;~~general applicability. (ii) The ~~Commission has not issued an order preventing or suspending~~ Bonds have been duly authorized, and when duly executed by the ~~use~~ Company, authenticated by the Trustee and delivered to and paid for by the Underwriters pursuant to this Agreement, will be valid and binding obligations of the ~~Prospectus~~ Company enforceable in accordance with their terms, except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or ~~any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending~~ similar laws affecting creditors’ rights generally and (ii) the ~~effectiveness~~ rights of acceleration and the ~~Registration Statement has been issued; and to the knowledge~~ availability of ~~the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws~~ equitable remedies may be limited by equitable principles of ~~any jurisdiction;~~general applicability. (iii) ~~Each~~ This Agreement has been duly authorized, executed and delivered by the Company. (iv) The statements made in the Preliminary Prospectus and the Prospectus under the captions “Description of the ~~respective signatories has examined~~ Mortgage Bonds” and “Certain U.S. Federal Income Tax Considerations for Non-U.S. Holders,” and in the ~~Registration Statement~~ Base Prospectus under the caption “Description of the First Mortgage Bonds,” in each case insofar as such statements constitute summaries of the legal matters, documents or proceedings referred to therein, accurately and fairly summarize the matters referred to therein in all material respects. (v) The Company is not, and solely after giving effect to the offering and sale of the Bonds and the application of the proceeds thereof as described in the Prospectus, will not be subject to registration and ~~any amendment~~ regulation as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended. In rendering the foregoing opinions, such counsel may state that it has relied as to certain factual matters on information obtained from public officials, officers and representatives of the Company and has assumed that the signatures on all documents examined by it are genuine, and that such counsel has not independently verified such factual matters or ~~supplement thereto~~assumptions. In addition, ~~including any~~ such counsel may assume matters governed by New York law. You shall also have received a statement of ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ LLC, dated the Closing Date, to the effect that: (1) no facts have come to such counsel’s attention that have caused such counsel to believe that the documents filed by the Company under the ~~Exchange~~ 1934 Act and ~~deemed to be~~ the 1934 Act Regulations that are incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, were not, on their face, appropriately responsive in all material respects to the requirements of the 1934 Act and the 1934 Act Regulations (except that in each case such ~~documents contain all statements~~ counsel need not express any view as to the financial statements, schedules and other financial information included or incorporated by reference therein or excluded therefrom or the Form T-1); (2) the Registration Statement, at the Applicable Time and the Prospectus, as of ~~material fact required~~ its date, appeared on their face to be ~~stated therein~~appropriately responsive in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations (except that in each case such counsel need not express any view as to the financial statements, schedules and ~~do not include any~~ other financial information included or incorporated by reference therein or excluded therefrom or the Form T-1); and (3) no facts have come to such counsel’s attention that have caused such counsel to believe that the Registration Statement, at the Applicable Time, contained an untrue statement of a material fact or ~~omit~~ omitted to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of its date and ~~since~~ as of the ~~date on which the Registration Statement was initially filed~~Closing Date, ~~no event has occurred that was required to be set forth in~~ contained or contains an ~~amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set fo~~untrue statemen

Appears in 1 contract

Sources: Underwriting Agreement (Duke Energy Indiana, Inc.)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Bonds will be subject to the accuracy of the representations and warranties on the part of the Company ~~herein set forth as of the date hereof and as of each Closing Date~~herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Company made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Prospectus shall have been ~~declared effective~~ filed by the Company with the Commission ~~not later than 5:30 p.m., Washington, D.C. time, on~~ pursuant to Rule 424(b) within the ~~date of this Agreement, or such later~~ applicable time period prescribed for filing by the 1933 Act Regulations and ~~date as~~ in accordance herewith and each Permitted Free Writing Prospectus shall have been ~~consented to~~ filed by the ~~Representatives~~Company with the Commission within the applicable time periods prescribed for such filings by, ~~which consent shall be deemed~~ and otherwise in compliance with, Rule 433. (b) At or after the Applicable Time and prior to ~~have been given if~~ the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued by and no proceedings for that purpose or pursuant to Section 8A of the ~~Commission or any state securities commission nor~~1933 Act shall have been instituted or, to the knowledge of the ~~Company~~Company or you, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be threatened by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) ~~Subsequent~~ At or after the Applicable Time and prior to the ~~execution~~ Closing Date, the rating assigned by M▇▇▇▇’▇ Investors Service, Inc. or S&P Global Ratings (or any of their successors) to any debt securities or preferred stock of the Company as of the date of this ~~Agreement,~~Agreement shall not have been lowered. (id) Since the respective most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus and up to the Closing Date, there shall not have ~~occurred~~ been any material adverse change in the condition of the Company and its subsidiaries, taken as a whole, financial or ~~development involving~~otherwise, except as reflected in or ~~which could be reasonably expected~~ contemplated by the Pricing Disclosure Package and the Prospectus, and since such dates and up to ~~involve~~the Closing Date, ~~a Material Adverse Effect, whether or~~ there shall not ~~arising from~~ have been any material transaction entered into by the Company other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which ~~on the Company,~~ in ~~any such case described in clause (i) or (ii) above,~~ your reasonable judgment is ~~in the reasonable and good faith opinion of the Representatives~~ so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Shares~~ Bonds on the terms and in the manner contemplated in by the ~~Registration Statement~~ Pricing Disclosure Package and the Prospectus. (ce) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives You shall have received ~~opinions~~ an opinion of ~~Foley & Lardner, special couns~~E▇▇▇▇▇▇▇▇ ▇▇r ▇▇▇▇▇▇, Esq., Deputy General Counsel of Duke Energy Business Services LLC, the ~~Company~~ service company subsidiary of Duke Energy Corporation (as who in such capacity provides legal services to the ~~matters set forth below in subsections~~ Company) (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed or other appropriate counsel reasonably satisfactory to the Representatives, ~~as the representatives of the Underwriters~~which may include Duke Energy Corporation’s other “in-house” counsel), ~~and~~ dated the ~~First Closing Date or the Second~~ Closing Date~~, as the case may be~~, to the effect that: (i) The Company is a limited liability company duly organized and validly existing ~~as a corporation in good standing~~ under the laws of ~~Delaware~~the State of Indiana, with ~~full corporate~~ power and authority (limited liability company and other) to ~~own, lease and operate~~ own its properties and conduct its business as ~~presently conducted and as~~ described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement Pricing Disclosure Package and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform its obligations under this Agreement~~; the performance of~~ . (ii) South Construction Company, Inc., the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Companysubsidiary, ~~and~~ is a ~~legal~~corporation duly organized and validly existing under the laws of Indiana and has due corporate and governmental authority to carry on the business in which it is engaged, ~~valid and binding agreement~~ except where the failure would not, singularly or in the aggregate, reasonably be expected to have a material adverse effect on the consolidated financial position, member’s equity, results of operations, business or prospects of the Company ~~enforceable against the Company in accordance with~~ and its ~~terms~~subsidiaries, ~~except that rights to indemnity or contribution hereunder may be limited by applicable law and except~~ taken as ~~to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally~~a whole, and ~~by equitable principles limiting~~ to own and operate the ~~right to specific performance or other equitable relief; and, to~~ properties in use in such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD);business. (xiii) The execution, delivery and performance of this ~~Agreement~~ Agreement, the First Mortgage Indenture and the Bonds and compliance by the Company with its obligations hereunder and thereunder (x) will ~~not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of~~not conflict with, or result in any charge or encumbrance upon any of the ~~breach, modification or termination~~ assets of the Company (other than pursuant to the First Mortgage Indenture) pursuant to the terms of, or constitute a default under, any agreement, ~~lease~~indenture or instrument known to such counsel, ~~franchise, license, indenture, permit, mortgage, deed~~ or result in a violation of ~~trust, other evidence~~ the Articles or Operating Agreement of ~~indebtedness or other instrument to which~~ the Company or (as in effect on the ~~Significant Subsidiary is a party or by which the Company or the Significant Subsidiary,~~ Closing Date) or any ~~of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance,~~ order, ~~rule, decree~~ rule or regulation (also as in effect on the Closing Date) of any ~~court, regulatory~~ court or governmental ~~body, arbitrator, administrative~~ agency ~~or other instrumentality of the United States~~ having jurisdiction over the Company and (y) the issuance of the Bonds in accordance with the First Mortgage Indenture and the sale of the Bonds in accordance with this Agreement, do not and will not result in any violation by the Company of any of the terms or provisions of the ~~Significant Subsidiary (assuming compliance with all applicable federal and state securities laws);~~Articles or Operating Agreement, or of the First Mortgage Indenture, or any mortgage or other agreement or instrument known to such counsel by which the Company is bound. (xiiv) ~~To such counsel's knowledge~~The First Mortgage Indenture is in due and proper form, ~~there are no holders of Common Stock or other securities~~ has been duly and validly authorized by all necessary limited liability company action, has been duly executed and delivered by the Company, qualified under the 1939 Act, and, assuming due authorization, execution and delivery by the Trustee, the First Mortgage Indenture is a valid and binding instrument of the Company, enforceable in accordance with its terms, except as (i) the enforceability thereof may be limited by bankruptcy, insolvency, or ~~securities that are convertible or exchangeable into Common Stock or~~ similar laws affecting mortgagees’ and other ~~securities~~ creditors’ rights generally, and (ii) the rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. (v) The issue of the Bonds by the Company in accordance with the terms of the First Mortgage Indenture has been duly authorized by all necessary limited liability company action; when duly executed by the Company, ~~that have rights~~ authenticated by the Trustee and delivered to and paid for by the Underwriters pursuant to this Agreement, the Bonds will constitute the legal, valid and binding obligations of the Company enforceable in accordance with their terms, secured by the lien of and entitled to the ~~registration~~ benefits provided by the First Mortgage Indenture, except as (i) the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting mortgagees’ and other creditors’ rights generally, and (ii) the rights of ~~such securities under~~ acceleration and the ~~Act or any Blue Sky Laws;~~availability of equitable remedies may be limited by equitable principles of general applicability. (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xivvi) The Company is has good and marketable title to the properties, rights and assets described in and conveyed by the First Mortgage Indenture and not ~~an "investment company,"~~ released by the Trustee from the lien thereof prior to the time of delivery of the Bonds, subject only to the lien of the First Mortgage Indenture, to “permitted liens” as ~~such term is~~ defined in the ~~Investment~~ First Mortgage Indenture and to certain encumbrances and defects in respect of certain properties in service the aggregate book value of which is not deemed material; the description in the First Mortgage Indenture of such properties, rights and assets is adequate to constitute the First Mortgage Indenture a lien thereon; the First Mortgage Indenture, subject only to the matters referred to above, constitutes a valid and direct first lien on such properties, rights and assets, which include substantially all permanent fixed properties and franchises of the Company ~~Act~~ (except that real estate which is not used or useful in the public utility business of ~~1940~~the Company is excluded from the lien of the First Mortgage Indenture by the provisions thereof); and all permanent fixed properties and franchises acquired by the Company subsequent to the time of issuance of the Bonds (except that in certain cases real estate which is not used or useful in the public utility business of the Company is excluded from the lien of the First Mortgage Indenture by the provisions thereof) will be subject to the lien of the First Mortgage Indenture, subject, however, to “permitted liens” as ~~amended. Such counsel shall also state that they have participated~~ defined in ~~conferences with officers~~ the First Mortgage Indenture and liens, if any, existing or placed on such properties at the time of acquisition thereof by the Company. (vii) The First Mortgage Indenture, other ~~representatives~~ than the Supplemental Indenture, has been duly filed for record in such manner and in such places as are required by law in order to give constructive notice of, and to establish, preserve and protect the lien of, the First Mortgage Indenture on all property of the Company of every kind referred to in the First Mortgage Indenture as subject to the lien thereof. (viii) Except as referred to in the Pricing Disclosure Package and the Prospectus, there is no action, suit or proceeding, inquiry or investigation, at law or in equity or before or by any court, public board or body, pending or, to such counsel’s knowledge, threatened against or affecting the Company, ~~representatives~~ wherein an unfavorable decision, ruling or finding would (i) materially and adversely affect the condition (financial or otherwise), results of ~~auditors for~~ operations, business or properties of the Company or (ii) materially and ~~representatives~~ adversely affect the transactions contemplated by this Agreement, or which would adversely affect the validity or enforceability of the ~~Underwriters and their counsel during which~~ First Mortgage Indenture or the ~~content of~~ Bonds. The descriptions in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package and the Prospectus of any legal or governmental proceedings are accurate and ~~related matters were discussed and reviewed~~fairly present the information required to be shown, and ~~that, although~~ such counsel does not know of any litigation or any legal or governmental proceeding instituted or threatened against the Company or any of its properties that would be required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus and is not ~~verifying~~so disclosed. (ix) An order of the IURC relating to the issuance of the Bonds has been duly entered and, to such counsel’s knowledge, has not been modified or repealed in any respect and is ~~not passing upon~~ in full force and ~~does not assume~~ effect. The issuance and sale of the Bonds to the Underwriters are in conformity with the terms of such order. Except as may be required under the 1933 Act or the securities or Blue Sky laws of any ~~responsibility~~ jurisdiction, no further consent, approval, authorization or order of, or registration or filing with, any court or governmental or public agency, authority or body is required with respect to the Company for the ~~accuracy~~execution, ~~completeness~~ delivery and performance of this Agreement, the First Mortgage Indenture or ~~fairness~~ the Bonds, the issuance by the Company of the ~~statements contained or incorporated by reference into the Registration Statement~~ Bonds or the ~~Prospectus, on~~ consummation by the ~~basis~~ Company of the ~~information~~ transactions contemplated by this Agreement, the First Mortgage Indenture or the Bonds. (x) This Agreement has been duly authorized, executed and delivered by the Company. In addition, such counsel shall state that ~~was developed in the course of the performance of~~ no facts have come to such ~~services, they~~ counsel’s attention that have ~~no reason~~ caused such counsel to believe that the Registration ~~Statement including any document incorporated by reference therein~~Statement, ~~on its effective date~~at the Applicable Time, contained ~~any~~ an untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, ~~or any amendment or supplement thereto including any document incorporated by reference therein,~~ as of its ~~issue~~ date and as of the Closing Date, contained or contains ~~any~~ an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (~~provided~~ except that in each case such counsel need not express an opinion as to (i) the financial statements and other financial and accounting data included or incorporated by reference therein or excluded therefrom, including XBRL interactive data, (ii) the statement of the eligibility and qualification of the Trustee included in the Registration Statement or (iii) the information in the Prospectus Supplement under the caption “Book-Entry System”). Such counsel shall further state that, in addition, no facts have come to such counsel’s attention that have caused such counsel to believe that the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that such counsel need not express ~~no belief regarding~~ an opinion as to (i) the financial statements and ~~related schedules and~~ other financial and accounting data included or ~~statistical data contained in the Registration Statement, any amendment thereto including any document~~ incorporated by reference ~~therein~~therein or excluded therefrom, including XBRL interactive data, or (ii) the ~~Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein~~information in the Prospectus Supplement under the caption “Book-Entry System”). To Such counsel shall expressly authorize the ~~extent that any of such opinions are stated~~ Underwriters to ~~be based upon~~ rely on such counsel~~'s knowledge or to be given "~~’s opinion dated the Closing Date delivered to the ~~knowledge of such counsel," such qualification shall signify that no information has come~~ Trustee pursuant to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing DateFirst Mortgage Indenture. (ef) ~~The Representatives~~ You shall have received an opinion of ~~Michael Best & Friedrich LLP,~~ H▇▇▇▇▇ A▇▇▇▇▇▇ ▇▇~~▇ the~~ ▇▇~~▇▇▇▇▇▇ters~~▇ LLP, counsel to the Company, dated the ~~First Closing Date or the Second~~ Closing Date, ~~as the case may be, with respect~~ to the effect that: (i) The Supplemental Indenture has been duly authorized, executed and delivered by the Company, and assuming due authorization, execution and delivery by the Trustee, the First Mortgage Indenture constitutes a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting mortgagees’ and other creditors’ rights generally from time to time in effect, and to general principals of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law). (ii) The Bonds have been duly authorized and, when executed and authenticated in accordance with the provisions of the Original Mortgage and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Original Mortgage and enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting mortgagees’ and other creditors’ rights generally from time to time in effect and to general principals of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law). (iii) This Agreement has been duly authorized, executed and delivered by the Company. (iv) The statements set forth (i) under the caption “Description of First Mortgage Bonds” in the Base Prospectus and (ii) under the caption “Description of the Mortgage Bonds” in the Pricing Disclosure Package and the Prospectus, insofar as such statements purport to summarize certain provisions of the First Mortgage Indenture and the Bonds, fairly summarize such provisions in all material respects. (v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Certain U.S. Federal Income Tax Considerations,” insofar as such statements purport to constitute summaries of matters of United States federal income tax law, constitute accurate and complete summaries, in all material respects, subject to the qualifications set forth therein. (vi) The Company is not, and solely after giving effect to the offering and sale of the ~~Shares hereunder~~Bonds and the application of the proceeds thereof as described in the Prospectus, will not be subject to registration and regulation as an “investment company” as such term is defined in the ~~Registration Statement~~ Investment Company Act of 1940, as amended. In rendering the foregoing opinions, such counsel may state that it has relied as to certain factual matters on information obtained from public officials, officers and ~~other related matters as~~ representatives of the ~~Representatives may reasonably require~~Company and has assumed that the signatures on all documents examined by such counsel are genuine, and ~~the Company shall have furnished to~~ that such counsel has not independently verified such ~~documents and shall have exhibited to them such papers and records as~~ factual matters or assumptions. In giving their opinion, such counsel ~~reasonably request for~~ may rely on the ~~purpose~~ opinion of ~~enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇~~ E▇~~▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President,~~ ▇▇▇▇▇▇▇ ▇▇▇▇~~sel and Secretary~~▇▇▇▇, Esq., Deputy General Counsel of Duke Energy Business Services, LLC, the service company subsidiary of Duke Energy Corporation (who in such capacity provides legal services to the Company~~, in their respective capacities as such, to the effect that:~~ ) (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set foother appropriate counsel reasonably satisfactory

Appears in 1 contract

Sources: Underwriting Agreement (Duke Energy Indiana, LLC)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall be~~ to purchase and pay for the Shares at the Time of Delivery are subject to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of the date hereof and as of each Closing Date~~Corporation herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Corporation made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Corporation of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Prospectus shall have been ~~declared effective~~ filed by the Corporation with the Commission ~~not later than 5:30 p.m., Washington, D.C. time, on~~ pursuant to Rule 424(b) within the ~~date of this Agreement, or such later~~ applicable time period prescribed for filing by the 1933 Act Regulations and ~~date as~~ in accordance herewith and the Permitted Free Writing Prospectus shall have been ~~consented to~~ filed by the ~~Representatives~~Corporation with the Commission within the applicable time periods prescribed for such filings by, ~~which consent shall be deemed~~ and otherwise in compliance with, Rule 433. (b) At or after the Applicable Time and prior to ~~have been given if~~ the ~~Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf~~ Time of ~~the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made;~~ Delivery, no stop order suspending the effectiveness of the Registration Statement shall have been issued by and no proceedings for that purpose or pursuant to Section 8A of the ~~Commission or any state securities commission nor~~1933 Act shall have been instituted or, to the knowledge of the ~~Company~~Corporation or you, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be threatened by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) ~~Subsequent~~ At or after the Applicable Time and prior to the ~~execution~~ Time of Delivery, the rating assigned by ▇▇▇▇▇’▇ Investors Service, Inc., S&P Global Ratings or Fitch Ratings, Inc. (or any of their successors) to any debt securities or preferred stock of the Corporation as of the date of this ~~Agreement,~~Agreement shall not have been lowered. (id) Since the respective most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus and up to the Time of Delivery, there shall not have ~~occurred~~ been any material adverse change in the condition of the Corporation, financial or ~~development involving~~otherwise, except as reflected in or ~~which could be reasonably expected~~ contemplated by the Pricing Disclosure Package and the Prospectus, and, since such dates and up to ~~involve~~the Time of Delivery, ~~a Material Adverse Effect, whether or~~ there shall not ~~arising from~~ have been any material transaction entered into by the Corporation other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which ~~on the Company,~~ in ~~any such case described in clause (i) or (ii) above,~~ your reasonable judgment is ~~in the reasonable and good faith opinion of the Representatives~~ so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in by the ~~Registration Statement~~ Pricing Disclosure Package and the Prospectus. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (de) The Representatives shall have received ~~opinions~~ an opinion of ~~Foley & Lardner, special couns~~▇▇▇▇▇▇ ▇. ▇~~r the Company (as to the matters set forth below in subsections (i)~~▇▇▇▇ III, ~~(ii)~~Esq., ~~(vi), (viii), (ix) and (xiv)), and the Vice President,~~ Deputy General Counsel ~~and Secretary~~ of Duke Energy Business Services LLC, the service company subsidiary of the ~~Company (as to the matters set forth in subsections (iii)~~Corporation, ~~(iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and~~ dated the ~~First Closing Date or the Second Closing Date, as the case may be~~Time of Delivery, to the effect that: (i) ~~The Company~~ Each of Duke Energy Ohio, Inc., Progress Energy, Inc., and Piedmont Natural Gas Company, Inc. has been duly incorporated and is validly existing ~~as a corporation~~ in good standing under the laws of ~~Delaware, with full~~ the jurisdiction of its incorporation and has the respective corporate power and authority and foreign qualifications necessary to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate own its properties and to conduct its business as ~~presently conducted~~ described in the Pricing Disclosure Package and the Prospectus. Each of Duke Energy Carolinas, LLC, Duke Energy Florida, LLC, Duke Energy Indiana, LLC and Duke Energy Progress, LLC has been duly organized and is validly existing and in good standing as a limited liability company under the laws of the State of North Carolina, the State of Florida, the State of Indiana and the State of North Carolina, respectively, and has full limited liability company power and authority necessary to own its properties and to conduct its business as described in the ~~Prospectus~~ Pricing Disclosure Package and the ~~Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all~~ Prospectus. (ii) Each of the ~~issued~~ Corporation and ~~outstanding capital stock~~ the Principal Subsidiaries is duly qualified to do business in each jurisdiction in which the ownership or leasing of its property or the conduct of its business requires such qualification, except where the failure to so qualify, considering all such cases in the aggregate, does not have a material adverse effect on the business, properties, financial condition or results of operations of the ~~Significant Subsidiary;~~Corporation and its subsidiaries taken as a whole. (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (viiii) The Registration Statement ~~has become~~ became effective ~~under~~ upon filing with the Commission pursuant to Rule 462 of the 1933 Act Regulations, and, to the best of such counsel's ’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened by under the ~~Commission;~~ 1933 Act. (iv) The descriptions in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package and the Prospectus ~~and~~ of any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings ~~that~~ are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, accurate and ~~in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein,~~ fairly present the information ~~called for with respect~~ required to be shown, and such counsel does not know of any litigation or any legal ~~matters~~or governmental proceeding instituted or threatened against the Corporation or any of its Principal Subsidiaries or any of their respective properties that would be required to be disclosed in the Registration Statement, ~~documents~~ the Pricing Disclosure Package or the Prospectus and ~~proceedings;~~is not so disclosed. (ixv) Each of this Agreement and the Deposit Agreement has been duly authorized, executed and delivered by the Corporation. (vi) The ~~Company has full corporate power~~ execution and ~~authority to enter into and perform this Agreement; the performance~~ filing of the ~~Company's obligations hereunder and the consummation~~ Certificate of ~~the transactions described herein~~ Designations have been duly authorized by the ~~Company by all necessary corporate action~~ Corporation, and ~~this Agreement~~ the Certificate of Designations has been duly executed and ~~delivered by and on behalf~~ filed with the Secretary of State of the ~~Company, and is a legal, valid and binding agreement~~ State of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD);Delaware. (xvii) The execution, delivery and performance by the Corporation of this Agreement, the Deposit Agreement and the Certificate of Designations, and the consummation by the ~~Company will not: (A) violate any~~ Corporation of the transactions contemplated hereby and thereby, including the issuance and deposit of the Preferred Shares with the Depositary against the issuance of the Shares in accordance with the terms of the Certificate of Designations and the Deposit Agreement, the issuance and sale of the Shares and compliance by the Corporation with all of the provisions of this Agreement, the ~~Articles~~ Deposit Agreement and the Certificate of ~~Incorporation~~ Designations, will not violate or ~~Bylaws of the Company or the Significant Subsidiary; (B) violate~~ contravene any of the provisions ofof the Certificate of Incorporation or By-Laws of the Corporation or any statute or any order, rule or regulation of which such counsel is aware of any court or governmental agency or body having jurisdiction over the Corporation or any of its Principal Subsidiaries or any of their respective property, nor will such action conflict with or result in a breach or violation of any of the ~~breach, modification~~ terms or ~~termination~~ provisions of, or constitute a default ~~under,~~ under any ~~agreement, lease, franchise, license,~~ indenture~~, permit~~, mortgage, deed of trust, ~~other evidence of indebtedness~~ loan agreement or other agreement or instrument known to such counsel to which the ~~Company~~ Corporation or ~~the Significant Subsidiary~~ any of its Principal Subsidiaries is a party or by which any of them or their respective property is bound or to which any of its property or assets is subject which affects in a material way the ~~Company~~ Corporation’s ability to perform its obligations under this Agreement, the Deposit Agreement or the ~~Significant Subsidiary~~Certificate of Designations. (viii) No consent, ~~or any of their respective owned or leased property is bound~~approval, ~~and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance~~authorization, order, ~~rule~~registration or qualification is required to authorize, ~~decree~~ or ~~regulation~~ for the Corporation to consummate the transactions contemplated by this Agreement, the Deposit Agreement or the Certificate of ~~any court~~Designations, ~~regulatory~~ except for such consents, approvals, authorizations, registrations or ~~governmental body, arbitrator, administrative agency~~ qualifications as may be required under state securities or ~~other instrumentality~~ Blue Sky laws in connection with the purchase and distribution of the ~~United States having jurisdiction over~~ Shares by the ~~Company or~~ Underwriters and except as required in (i) Condition 7.6 of the ~~Significant Subsidiary~~ order of the North Carolina Utilities Commission dated September 29, 2016, in Docket Nos. E-7, Sub 1100, E-2, Sub 1095, and G-9, Sub 682 and (~~assuming compliance~~ ii) Condition 7.6(b) of the orders of the Public Service Commission of South Carolina dated July 11, 2012 and November 2, 2016, in Docket No. 2011-158-E, which conditions have been complied with. (ix) The Preferred Shares have been duly authorized by the Corporation and when the Preferred Shares have been issued and delivered in accordance with this Agreement and the Deposit Agreement at the Time of Delivery, will be validly issued, fully paid and nonassessable; the Shares, and the deposit of the Preferred Shares in accordance with the provisions of the Deposit Agreement, have been duly authorized by the Corporation; when the Shares have been issued and delivered and paid for and the Depositary Receipts have been duly executed and delivered by the Depositary in accordance with this Agreement and the Deposit Agreement, the Shares will be duly and validly issued and the holders thereof will be entitled to the benefits provided in the Deposit Agreement and the Depositary Receipts; the Certificate of Designations will conform, as to legal matters, in all ~~applicable federal~~ material respects to the descriptions thereof contained in the Pricing Disclosure Package and ~~state securities laws);~~the Prospectus; and the stockholders of the Corporation have no statutory preemptive rights with respect to the Shares and the Preferred Shares. (x) The Securities conform as to legal matters in all material respects to the descriptions thereof in (i) the Base Prospectus under the captions “Description of Preferred Stock” and “Description of Depositary Shares” and (ii) the Pricing Disclosure Package and the Prospectus under the captions “Description of the Series A Preferred Stock” and “Description of the Depositary Shares.” (xi) ~~To such counsel's knowledge, there are no holders~~ The Corporation’s authorized capital stock is as set forth in the Pricing Disclosure Package and the Prospectus and all outstanding shares of ~~Common Stock or other securities~~ common stock of the ~~Company~~Corporation have been duly authorized and are validly issued, fully paid and nonassessable. Such counsel may state that his opinion in paragraph (ix) is subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or ~~securities~~ affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law). Such counsel shall state that ~~are convertible or exchangeable into Common Stock or other securities~~ nothing has come to his attention that has caused him to believe that each document incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, when filed, was not, on its face, appropriately responsive, in all material respects, to the requirements of the ~~Company, that have rights to~~ 1934 Act and the ~~registration of such securities under the~~ 1934 Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amendedRegulations. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information nothing has come to his attention that ~~was developed in the course of the performance of such services, they have no reason~~ has caused him to believe that (i) the Registration ~~Statement~~ Statement, including ~~any document incorporated by reference therein~~the Rule 430B Information, on as of its effective ~~date~~date and at each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations, contained any untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package at the Applicable Time contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) that the ~~Prospectus,~~ Prospectus or any amendment or supplement ~~thereto including any document incorporated by reference therein~~thereto, as of ~~its issue date~~ their respective dates and as at the Time of ~~the Closing Date~~Delivery, contained or contains any untrue statement of a material fact or omitted or omits to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading (~~misleading. Such counsel may also state that, except as otherwise expressly provided ~~that~~ in such ~~counsel need express no belief regarding~~ opinion, he does not assume any responsibility for the ~~financial~~ accuracy, completeness or fairness of the statements ~~and related schedules and other financial or statistical data~~ contained in or incorporated by reference into the Registration Statement, the Pricing Disclosure Package or the Prospectus and does not express any ~~amendment thereto including any document~~ opinion or belief as to (i) the financial statements or other financial and accounting data contained or incorporated by reference ~~therein~~therein or excluded therefrom, including XBRL interactive data or (ii) the ~~Prospectus~~information in the Prospectus under the caption “Book-Entry System.” In rendering the foregoing opinion, or such counsel may state that he does not express any ~~amendment or supplement thereto including~~ opinion concerning any ~~document incorporated by reference therein). To~~ law other than the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention law of the ~~attorneys in such firm who have been involved in the preparation or review~~ State of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may relyNorth Carolina or, to the extent ~~counsel deems such reliance proper~~set forth in the foregoing opinions, the federal securities laws and may rely as to all matters of ~~fact upon certificates~~ the laws of the States of South Carolina, Ohio, Indiana and Florida on appropriate counsel reasonably satisfactory to the Representatives, which may include the Corporation’s other “in-house” counsel). Such counsel may also state that he has relied as to certain factual matters on information obtained from public officials, officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement Corporation and other ~~related matters as the Representatives may reasonably require, and the Company shall have furnished~~ sources believed by him to ~~such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters~~be responsible. (f) The Representatives shall have received ~~on each Closing Date, a certificate~~ an opinion or opinions of ~~Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President,~~ Hunton ▇▇▇▇▇▇▇ ▇▇▇▇~~sel and Secretary~~▇ LLP, counsel to the Corporation, dated the Time of ~~the Company, in their respective capacities as such~~Delivery, to the effect that: (i) The ~~representations~~ Corporation has been duly incorporated and ~~warranties~~ is a validly existing corporation in good standing under the laws of the ~~Company set forth in Section 2 hereof are true and correct as~~ State of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate;Delaware. (ii) The ~~Commission~~ Corporation has ~~not issued an order preventing or suspending~~ the ~~use~~ corporate power and corporate authority to execute and deliver this Agreement, the Deposit Agreement and the Certificate of ~~the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued;~~ Designations and to consummate the ~~knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction;~~transactions contemplated hereby and thereby. (iii) Each of ~~the respective signatories has examined the Registration Statement~~ this Agreement and the ~~Prospectus~~Deposit Agreement has been duly authorized, executed and ~~any amendment or supplement thereto~~delivered by the Corporation. (iv) The Deposit Agreement is a valid and binding agreement of the Corporation, enforceable against the Corporation in accordance with its terms. (v) The execution and delivery by the Corporation of this Agreement, the Deposit Agreement and the Certificate of Designations do not and the performance of the Corporation’s obligations thereunder, including the issuance and deposit of the Preferred Shares and the issuance and sale of the Shares hereunder and thereunder, will not (i) conflict with the Corporation’s Certificate of Incorporation or By-Laws, (ii) constitute a violation of, or a breach of or default under, the terms of any ~~documents filed under~~ of the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be contracts set forth on Schedule IV hereto or (iii) violate or conflict with, or result in ~~an amended~~ any contravention of, any Applicable Law. “Applicable Law” means the General Corporation Law of the State of Delaware and those laws, rules and regulations of the States of New York and North Carolina and those federal laws, rules and regulations of the United States of America, in each case that, in such counsel’s experience, are normally applicable to transactions of the type contemplated by this Agreement (other than the United States federal securities laws, state securities or ~~supplemented prospectus or in an amendment~~ Blue Sky laws, antifraud laws and the rules and regulations of the Financial Industry Regulatory Authority, Inc., the North Carolina Public Utilities Act, the rules and regulations of the North Carolina Utilities Commission and the New York State Public Service Commission and the New York State Public Service Law), but without our having made any special investigation as to the ~~Registration Statement that has not been so set fo~~applicability of any specific law, rule or regulation.

Appears in 1 contract

Sources: Underwriting Agreement (Duke Energy CORP)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Bonds will be subject to the accuracy of the representations and warranties on the part of the Company ~~herein set forth as of the date hereof and as of each Closing Date~~herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Company made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Prospectus shall have been ~~declared effective~~ filed by the Company with the Commission ~~not later than 5:30 p.m., Washington, D.C. time, on~~ pursuant to Rule 424(b) within the ~~date of this Agreement, or such later~~ applicable time period prescribed for filing by the 1933 Act Regulations and ~~date as~~ in accordance herewith and each Permitted Free Writing Prospectus shall have been ~~consented to~~ filed by the ~~Representatives~~Company with the Commission within the applicable time periods prescribed for such filings by, ~~which consent shall be deemed~~ and otherwise in compliance with, Rule 433. (b) At or after the Applicable Time and prior to ~~have been given if~~ the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued by and no proceedings for that purpose or pursuant to Section 8A of the ~~Commission or any state securities commission nor~~1933 Act shall have been instituted or, to the knowledge of the ~~Company~~Company or you, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be threatened by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) ~~Subsequent~~ At or after the Applicable Time and prior to the ~~execution~~ Closing Date, the rating assigned by M▇▇▇▇’▇ Investors Service, Inc. or S&P Global Ratings (or any of their successors) to any debt securities or preferred stock of the Company as of the date of this ~~Agreement,~~Agreement shall not have been lowered. (id) Since the respective most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus and up to the Closing Date, there shall not have ~~occurred~~ been any material adverse change in the condition of the Company, financial or ~~development involving~~otherwise, except as reflected in or ~~which could be reasonably expected~~ contemplated by the Pricing Disclosure Package and the Prospectus, and, since such dates and up to ~~involve~~the Closing Date, ~~a Material Adverse Effect, whether or~~ there shall not ~~arising from~~ have been any material transaction entered into by the Company other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which ~~on the Company,~~ in ~~any such case described in clause (i) or (ii) above,~~ your reasonable judgment is ~~in the reasonable and good faith opinion of the Representatives~~ so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Shares~~ Bonds on the terms and in the manner contemplated in by the ~~Registration Statement~~ Pricing Disclosure Package and the Prospectus. (ce) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives You shall have received ~~opinions~~ an opinion of ~~Foley & Lardner, special couns~~D▇▇▇▇▇ ▇. ▇r ▇▇▇▇▇▇▇, Esq., Deputy General Counsel of Duke Energy Business Services LLC, the ~~Company~~ service company subsidiary of Duke Energy Corporation (as who in such capacity provides legal services to the ~~matters set forth below in subsections~~ Company) (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed or other appropriate counsel reasonably satisfactory to the Representatives, ~~as the representatives of the Underwriters~~which may include Duke Energy Corporation’s other “in-house” counsel), ~~and~~ dated the ~~First Closing Date or the Second~~ Closing Date~~, as the case may be~~, to the effect that: (i) The Company has been duly organized and is validly existing as a ~~corporation~~ limited liability company in good standing under the laws of ~~Delaware~~the State of Florida, with ~~full corporate~~ power and authority (limited liability company and other) to ~~own, lease and operate~~ own its properties and conduct its business as ~~presently conducted and as~~ described in the Pricing Disclosure Package and the Prospectus and ~~the Registration Statement;~~to enter into and perform its obligations under this Agreement. (ii) The ~~authorized capital stock~~ Company is duly qualified to do business in each jurisdiction in which the ownership or leasing of its property or the conduct of its business requires such qualification, except where the failure to so qualify, considering all such cases in the aggregate, does not have a material adverse effect on the business, properties, financial condition or results of operations of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share;Company. (iii) The ~~issued and outstanding shares of capital stock~~ Registration Statement became effective upon filing with the Commission pursuant to Rule 462 of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted)1933 Act Regulations, and, to the best of such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's ’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened by under the ~~Commission;~~ 1933 Act. (iv) The descriptions in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package and the Prospectus ~~and~~ of any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings ~~that~~ are accurate and fairly present the information required to be ~~described~~ shown, and such counsel does not know of any litigation or any legal or governmental proceeding instituted or threatened against the Company or any of its properties that would be required to be disclosed in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package or the Prospectus ~~that are~~ and is not so ~~described~~disclosed. (v) This Agreement has been duly authorized, ~~nor~~executed and delivered by the Company. (vi) The issue and sale of the Bonds by the Company and the execution, to delivery and performance by the Company of this Agreement, the Mortgage and the Bonds will not contravene any of the provisions of the Articles of Organization or the Limited Liability Company Operating Agreement, the Florida Revised Limited Liability Company Act or any statute or any order, rule or regulation of which such ~~counsel's knowledge~~counsel is aware of any court or governmental agency or body having jurisdiction over the Company or any of its property, ~~is there~~ nor will such action conflict with or result in a breach or violation of any ~~transaction~~of the terms or provisions of, ~~relationship~~or constitute a default under any indenture, ~~agreement~~mortgage, ~~contract~~ deed of trust, loan agreement or other ~~document of~~ agreement to which the Company is a ~~character required to be described in the Registration Statement~~ party or ~~the Prospectus,~~ by which it or ~~required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein,~~ its property is bound or to ~~be filed as an exhibit to~~ which any of its property or ~~incorporated by reference in the Registration Statement by the Act, which~~ assets is ~~not described,~~ subject or any instrument filed or incorporated by reference ~~required;~~as an exhibit to the Annual Report on Form 10-K of the Company for the fiscal year ended December 31, 2019 or any subsequent Quarterly Report on Form 10-Q or Form 10-Q/A of the Company or any Current Report on Form 8-K of the Company with an execution or filing date after December 31, 2019, which affects in a material way the Company’s ability to perform its obligations under this Agreement, the Mortgage or the Bonds. (vii) The Florida Public Service Commission has issued an appropriate order with respect to the issuance and sale of the Bonds in accordance with this Agreement, and, to the best of such counsel’s knowledge, such order is still in effect and the issuance and sale of the Bonds to the Underwriters are in conformity with the terms of such order. (viii) ~~Statements set forth in the Prospectus~~ The Mortgage has been duly qualified under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings;1939 Act. (ix) The ~~Company~~ Mortgage has ~~full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have~~ been duly and validly authorized ~~by the Company~~ by all necessary ~~corporate action and this Agreement~~ limited liability company action, has been duly and validly executed and delivered by ~~and on behalf of~~ the Company, and is a ~~legal,~~ valid and binding ~~agreement~~ mortgage of the Company enforceable in accordance with its terms; provided, however, that certain remedies, waivers and other provisions of the Mortgage may not be enforceable, but such unenforceability will not render the Mortgage invalid as a whole or affect the judicial enforcement of (A) the obligation of the Company to repay the principal, together with the interest thereon as provided in the Bonds or (B) the right of the Trustee to exercise its right to foreclose under the Mortgage. (x) The Bonds have been duly authorized, executed and issued by the Company and, when the same have been authenticated by the Trustee as specified in the Mortgage and delivered against payment therefor, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with ~~its~~ their terms, and are entitled to the benefits and security afforded by the Mortgage in accordance with the terms of the Mortgage and the Bonds, except as set forth in paragraph (ix) above. (xi) The Company has good and marketable title, with minor exceptions, restrictions and reservations in conveyances, and defects that ~~rights~~ are of the nature ordinarily found in properties of similar character and magnitude and that, in such counsel’s opinion, will not in any substantial way impair the security afforded by the Mortgage, to ~~indemnity~~ all the properties described in the granting clauses of the Mortgage and upon which the Mortgage purports to create a lien. The description in the Mortgage of the above-mentioned properties is legally sufficient to constitute the Mortgage a lien upon said properties, including, without limitation, properties hereafter acquired by the Company (other than those expressly excepted and reserved therefrom). Said properties constitute substantially all the permanent physical properties and franchises (other than those expressly excepted and reserved therefrom) of the Company and are held by the Company free and clear of all liens and encumbrances except the lien of the Mortgage and excepted encumbrances, as defined in the Mortgage. The properties of the Company are subject to liens for current taxes, which it is the general practice of the Company to pay regularly as and when due. The Company has easements for rights-of-way adequate for the operation and maintenance of its transmission and distribution lines that are not constructed upon public highways. The Company has followed the practice generally of acquiring (i) certain rights-of-way and easements and certain small parcels of fee property appurtenant thereto and for use in conjunction therewith and (ii) certain other properties of small or ~~contribution hereunder~~ inconsequential value, without an examination of title and, as to the title to lands affected by said rights-of-way and easements, of not examining the title of the lessor or grantor whenever the lands affected by such rights-of-way and easements are not of such substantial value as in the opinion of the Company to justify the expense attendant upon examination of titles in connection therewith. In the opinion of said counsel, such practice of the Company is consistent with sound economic practice and with the method followed by other companies engaged in the same business and is reasonably adequate to assure the Company of good and marketable title to all such property acquired by it. It is the opinion of said counsel that any such conditions or defects as may be ~~limited~~ covered by ~~applicable~~ the above recited exceptions are not substantial and would not materially interfere with the Company’s use of such properties or with its business operations. The Company has the right of eminent domain in the State of Florida under which it may, if necessary, perfect or obtain title to privately owned land or acquire easements or rights-of-way required for use or used by the Company in its public utility operations. (xii) The Mortgage constitutes a valid, direct and first mortgage lien of record upon all franchises and properties now owned by the Company (other than those expressly excepted from the lien of the Mortgage and other than those franchises and properties which are not, individually or in the aggregate, material to the Company or the security afforded by the Mortgage) situated in the State of Florida, as described or referred to in the granting clauses of the Mortgage. (xiii) The Mortgage, other than the Supplemental Indenture, has been recorded and filed in such manner and in such places as may be required by law in order to fully preserve and protect, in all material respects, the security of the bondholders and all rights of the Trustee thereunder, and the Supplemental Indenture relating to the Bonds is in proper form for filing for record, both as a real estate mortgage and as a security interest, in all counties in the State of Florida in which any of the property (except as any therein or in the Mortgage are expressly excepted) described therein or in the Mortgage as subject to ~~enforceability~~ the lien of the Mortgage is located and, as a security interest, with the Surface Transportation Board and, upon such recording, the Supplemental Indenture will constitute adequate record notice to perfect the lien of the Mortgage, and preserve and protect, in all material respects, the security of the bondholders and all rights of the Trustee, as to all mortgaged and pledged property acquired by the Company subsequent to the recording of the Fifty-Sixth Supplemental Indenture dated as of November 1, 2019 and prior to the recording of the Supplemental Indenture. (xiv) No consent, approval, authorization, order, registration or qualification of or with any federal or Florida governmental agency or body or, to such counsel’s knowledge, any federal or Florida court, which has not been obtained or taken and is not in full force and effect, is required for the issue and sale of the Bonds by the Company and the compliance by the Company with all of the provisions of this ~~Agreement~~ Agreement, except for the registration under the 1933 Act of the Bonds, and such consents, approvals, authorizations, registrations or qualifications as may be ~~limited~~ required under state securities or Blue Sky laws in connection with the purchase and distribution of the Bonds by the Underwriters. Such counsel may state that such counsel’s opinions in paragraphs (ix), (x) and (xii) above are subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and other similar laws relating to or affecting mortgagees’ and other creditors' ’ rights generally, and by ~~equitable~~ general principles ~~limiting~~ of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and to an implied covenant of good faith and fair dealing. Such counsel may also state that such counsel’s opinion in paragraph (xi) above is based upon the ~~right to specific performance or other equitable relief; and,~~ Company’s title insurance. Such counsel shall state that nothing has come to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument ’s attention that has caused such counsel to ~~which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or~~ believe that each document incorporated by reference ~~as an exhibit to~~ in the Registration Statement~~; or (C) violate any statute~~, ~~ordinance~~the Pricing Disclosure Package and the Prospectus, ~~order~~when filed, ~~rule~~was not, ~~decree or regulation of any court~~on its face, ~~regulatory or governmental body~~appropriately responsive, ~~arbitrator~~in all material respects, ~~administrative agency or other instrumentality~~ to the requirements of the ~~United States having jurisdiction over~~ 1934 Act and the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the 1934 Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amendedRegulations. Such counsel shall also state that ~~they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their~~ nothing has come to such counsel’s attention that has caused such counsel ~~during which the content of~~ to believe that (i) the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness as of the ~~statements contained or incorporated by reference into~~ effective date with respect to the ~~Registration Statement or the Prospectus, on the basis~~ Underwriters pursuant to Rule 430B(f)(2) of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date1933 Act Regulations, contained any untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package at the Applicable Time contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) that the ~~Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein,~~ Prospectus as of its ~~issue~~ date ~~and as of~~ or at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading (~~misleading. Such counsel may also state that, except as otherwise expressly provided ~~that~~ in such opinion, such counsel ~~need express no belief regarding~~ does not assume any responsibility for the ~~financial~~ accuracy, completeness or fairness of the statements ~~and related schedules and other financial or statistical data~~ contained in or incorporated by reference into the Registration Statement, the Pricing Disclosure Package or the Prospectus and does not express any ~~amendment thereto including any document~~ opinion or belief as to (i) the financial statements or other financial and accounting data contained or incorporated by reference therein, or excluded therefrom, including XBRL interactive data, (ii) the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention statement of the ~~attorneys~~ eligibility and qualification of the Trustee included in ~~such firm who have been involved in the preparation or review of~~ the Registration Statement (the “Form T-1”) or (iii) the information in the Prospectus ~~that would give them actual current knowledge of~~ under the ~~existence or absence of such matter in question.~~ caption “Book-Entry System.” In rendering ~~such~~ the foregoing opinion, such counsel ~~for the Company~~ may ~~rely, to the extent~~ state that such counsel ~~deems such reliance proper,~~ has relied as to certain factual matters ~~of fact upon certificates of~~ on information obtained from public officials, officers of the Company and ~~any governmental officials, and copies of all~~ other sources believed by such ~~certificates shall~~ counsel to be ~~furnished to the Representatives and for the Underwriters on or before each Closing Date~~reliable. (ef) ~~The Representatives~~ You shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇Hunton A▇▇▇▇▇▇ ▇▇▇▇~~sel and Secretary~~▇ LLP, of counsel to the Company, ~~in their respective capacities as such~~dated the Closing Date, to the effect that: (i) The ~~representations~~ statements set forth (i) under the caption “Description of First Mortgage Bonds” in the Base Prospectus and ~~warranties~~ (ii) under the caption “Description of the ~~Company set forth~~ Mortgage Bonds” in ~~Section 2 hereof are true~~ the Pricing Disclosure Package and ~~correct~~ the Prospectus, insofar as such statements purport to summarize certain provisions of the ~~date of this Agreement and as of the date of such certificate,~~ Mortgage and the ~~Company has complied~~ Bonds, fairly summarize such provisions in all material ~~respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate;~~respects. (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatoriesNo Governmental Approval, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which ~~the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that~~ has not been ~~so set fo~~obtained or taken and is no

Appears in 1 contract

Sources: Underwriting Agreement (Duke Energy Florida, Llc.)

Conditions of the Obligations of the Underwriters. The ~~obligations~~ obligation of the ~~several~~ Underwriters ~~under this Agreement shall~~ to subscribe and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of ~~the Company herein set forth as~~ each of the ~~date hereof~~ Issuer, the Bank, the Receivables Trustee and ~~as of each Closing Date~~the MTN Issuer herein, to the accuracy of the statements of officers of each of the ~~Company's officers~~ Issuer, the Bank, the Receivables Trustee and the MTN Issuer made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by each of the ~~Company~~ Issuer, the Bank, the Receivables Trustee and the MTN Issuer of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: ~~(a) The Registration Statement shall have been declared effective by the Commission not later than 5:30 p.m., Washington, D.C. time, on~~ 6.1 On or prior to the date of this ~~Agreement~~Agreement and on or prior to the Closing Date, ~~or such later time~~ you shall have received letters, dated the date of this Agreement and ~~date as~~ the Closing Date, respectively, of PricewaterhouseCoopers LLP, all addressed to the Underwriters confirming that they are independent public accountants within the meaning of the Act and the applicable published Rules and Regulations thereunder, substantially in the form heretofore agreed to and otherwise in form and in substance satisfactory to you and your counsel. 6.2 The Prospectus shall have been ~~consented~~ filed with the Commission in accordance with the Rules and Regulations and Section 5.1.1 of this Agreement; and, prior to by the ~~Representatives~~Closing Date, which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Issuer, the Bank or you, shall any proceedings for that purpose have been instituted or threatened; and any request of the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faith. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives shall have received opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as . 6.3 Subsequent to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this ~~Agreement or the consummation of the transactions contemplated by this Agreement~~ Agreement, there shall not have occurred (~~except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x~~i) ~~The execution, delivery and performance of this Agreement by the Company will not: (A) violate~~ any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiarychange, or any development involving a prospective change, in or affecting particularly the business or properties of ~~their respective owned~~ the Issuer, the MTN Issuer, the Receivables Trustee or ~~leased property is bound~~the Bank which, in your judgment, materially impairs the investment quality of the Notes; (ii) any downgrading in the rating of any debt securities of or guaranteed by the Bank or any debt securities the payments of which are dependent on payments on the Receivables by any "nationally recognized statistical rating organization (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any such debt securities (other than an announcement with positive implications of a possible upgrading, and ~~which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute~~no implication of a possible downgrading, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such rating), (iii) any suspension or limitation of trading in securities ~~under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading~~ generally on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement Exchange or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the ProspectusLondon Stock Exchange, or any ~~amendment~~ setting of minimum prices for trading on such exchange, or ~~supplement thereto including~~ any ~~document incorporated~~ suspension of trading of any securities of Barclays PLC or Barclays Bank PLC on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by ~~reference therein~~English, as United States Federal or New York authorities; (v) any material disruption in commercial banking securities settlement or clearance services; or (vi) any outbreak or escalation of ~~its issue date~~ major hostilities in which the United States or Great Britain is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in your judgment, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the issuance of and ~~as of~~ subscription for and payment for the Notes. 6.4 You shall have received legal opinions dated the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given ": 6.4.1 addressed to the ~~knowledge of such counsel," such qualification shall signify that no information has come~~ Underwriters from Weil, Gotshal & Manges; 6.4.2 addressed to the ~~attention of~~ Underwriters, the ~~attorneys in such firm who have been involved in~~ Note Trustee, ▇▇▇ ▇ssuer, the ~~preparation or review of~~ Receivables Trustee, the ~~Registration Statement or~~ MTN Issuer and the ~~Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion~~Bank, ~~counsel for the Company may rely,~~ from Clifford Chance LLP; 6.4.3 addressed to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, Under▇▇▇▇▇▇▇, the Note Trustee, the Issuer, the Receivables Trustee, the MTN Issuer and the Bank, from Bedell Cristin; 6.4.4 addressed to the Underwrite▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇ssuer, the Receivables Trustee, the MTN Issuer and the Bank, from Maclay Murray & Spens; and 6.4.5 addressed to the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇~~▇ ▇▇ief Financial Officer~~ustee, the Issuer, the Receivables Trustee, the MTN Issuer and ~~W. David Romoser~~the Bank, ~~Vice President, ▇▇~~from Tughan & Co; such legal opinions being in substantially the a▇▇▇▇▇ ~~▇▇▇▇sel~~ form. 6.5 You shall have received closing certificates dated the Closing Date, addressed to the Underwriters and ~~Secretary,~~ signed by a director or other duly authorised person on behalf of each of the ~~Company~~Issuer, the Receivables Trustee, the MTN Issuer and the Bank, as appropriate, each such certificate being in ~~their respective capacities as such,~~ substantially the same agreed form. 6.6 You shall have received an incumbency certificate addressed to the ~~effect that:~~Underwriters and signed by a director or other duly authorised person on behalf of the Issuer, the Receivables Trustee, the MTN Issuer and the Bank, each such certificate being in substantially the agreed form. 6.7 You shall have received confirmation on or before the Closing Date, that the UK Listing Authority has approved the Prospectus, and from the London Stock Exchange that the Notes have, subject to the execution, authentication and delivery of the Notes, been admitted to trading. 6.8 You shall have received the Memorandum and Articles of Association of each of the Issuer, the Bank, the MTN Issuer and the Receivables Trustee. 6.9 You shall have received certified copies of the resolution of the Board of Directors of the Issuer and any duly authorised committees thereof, approving and authorizing (ia) ~~The representations~~ the execution and ~~warranties of the Company set forth in Section 2 hereof are true and correct as of the date~~ delivery of this Agreement and as the other Issuer Related Transaction Documents, (b) the entry into and performance of the ~~date of such certificate~~transactions contemplated by this Agreement and the other Issuer Related Transaction Documents, and (c) the ~~Company has complied in all material respects~~ issue of the Notes. 6.10 You shall have received certified copies of the resolution of the Board of Directors of the Bank together with ~~all~~ evidence of appropriate delegated authority evidencing the ~~agreements~~ approval and ~~satisfied all~~ authorisation of the ~~conditions to be performed or satisfied~~ execution and delivery of this Agreement and the other Bank Related Transaction Documents and the entry into and performance of the transactions contemplated by ~~it at or prior~~ this Agreement and the other Bank Related Transaction Documents. 6.11 You shall have received certified copies of the resolutions of the Board of Directors of the MTN Issuer and any duly authorised committees thereof, authorizing (a) the execution and delivery of this Agreement and the other MTN Issuer Related Transaction Documents, (b) the entry into and performance of the transactions contemplated by this Agreement and the other MTN Issuer Related Transaction Documents, and (c) the issue of the Series 05-1 MTN Certificate. 6.12 You shall have received certified copies of the resolutions of the Board of Directors of the Receivables Trustee approving and authorizing the execution and delivery of this Agreement and the other Receivables Trustee Related Transaction Documents and the entry into and the performance of the transactions contemplated by this Agreement and the other Receivables Trustee Related Transaction Documents. 6.13 You shall have received a solvency certificate dated the Closing Date, addressed to the ~~date~~ Underwriters and signed by a duly authorised person on behalf of each of the Bank, the MTN Issuer, the Receivables Trustee and the Issuer, each such ~~certificate;~~certificate being substantially in the agreed form. 6.14 You shall have received evidence, satisfactory to you and your counsel, of the execution and delivery on or before the Closing Date by all parties thereto of the Issuer Related Transaction Documents, the Bank Related Transaction Documents, the Receivables Trustee Related Transaction Documents and the MTN Issuer Related Transaction Documents, the same being substantially the respective agreed forms. 6.15 On or before the Closing Date, receipt by the Representative of confirmation from the Issuer that it has borrowed from the Bank under the Expenses Loan Agreement an amount sufficient (when aggregated with the net proceeds of the issue of the Notes) (i) to subscribe and pay for the Series 05-1 MTN Certificate issued by the MTN Issuer and (ii) ~~The Commission has not issued an order preventing or suspending the use~~ to meet any other payment obligations of the ~~Prospectus~~ Issuer to the Underwriters, or any ~~Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness~~ of them. 6.16 You shall have received evidence, satisfactory to you and your counsel, of the ~~Registration Statement has been issued; and to~~ MTN Issuer and, where necessary, the ~~knowledge~~ Issuer having taken all necessary steps for the issue of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set foSeries 05-1

Appears in 1 contract

Sources: Underwriting Agreement (Barclaycard Funding PLC)

Conditions of the Obligations of the Underwriters. The ------------------------------------------------- obligations of the several Underwriters ~~under this Agreement~~ to purchase and pay for the Firm Common Shares on the First Closing Date and the Optional Common Shares on the Second Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholder herein set forth as of the date hereof and as of ~~each~~ the First Closing Date or the Second Closing Date, as the case may be, to the accuracy of the statements of Company officers and the ~~Company's officers~~ Selling Stockholder made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company and the Selling Stockholder of ~~its~~ their respective obligations hereunder, and to the following additional conditions~~, unless waived in writing by the Representatives~~: (a) The Registration Statement shall have ~~been declared~~ become effective ~~by the Commission~~ not later than ~~5:30 p.m.~~5:00 P.M. (or, in the case of a registration statement filed pursuant to Rule 462(b) of the Rules and Regulations relating to the Common Shares, not later than 10 P.M.), Washington, D.C. time, on the date of this Agreement, or at such later time ~~and date~~ as shall have been consented to by ~~the Representatives, which consent shall be deemed to have been given~~ you; if the ~~Registration Statement~~ filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b) of the Rules and Regulations, the Prospectus shall have been ~~declared effective on or before the date and time requested~~ filed in the ~~acceleration request submitted on behalf~~ manner and within the time period required by Rule 424(b) of the ~~Representatives pursuant~~ Rules and Regulations; and prior to ~~Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made;~~ such Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission~~ and no proceedings for that purpose shall have been instituted or ~~any state securities commission nor~~shall be pending or, to the knowledge of the Company, the Selling Stockholder or you, shall ~~any proceedings for that purpose have been instituted or threatened~~be contemplated by the Commission; and any request of the Commission ~~or any state securities commission~~ for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to ~~the reasonable satisfaction of the Representatives acting in good faith~~your satisfaction. (b) ~~Subsequent to~~ You shall be satisfied that since the ~~execution~~ respective dates as of ~~this Agreement,~~ which information is given in the Registration Statement and Prospectus, (i) there shall not have ~~occurred~~ been any change in the capital stock other than pursuant to the exercise of outstanding options and warrants disclosed in the Prospectus of the Company or ~~development involving,~~ any of its subsidiaries or ~~which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions~~ any material change in the indebtedness (other than in the ordinary course of business) of the Company or any of its subsidiaries, ~~and~~ (ii) except as set forth or contemplated by the Registration Statement or the Prospectus, no material verbal or written agreement or other transaction shall have been entered into by the Company ~~shall~~ or any of its subsidiaries, which is not ~~have sustained any~~ in the ordinary course of business or which could result in a material reduction in the future earnings of the Company and its subsidiaries, (iii) no loss or ~~interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity~~ damage (whether or not insured) to the property of the Company or ~~from~~ any ~~court~~ of its subsidiaries shall have been sustained which materially and adversely affects the condition (financial or otherwise), business, results of operations or prospects of the Company and its subsidiaries, (iv) no legal or governmental action, ~~order~~ suit or ~~decree having a Material Adverse Effect~~proceeding affecting the Company or any of its subsidiaries which is material to the Company and its subsidiaries or which affects or may affect the transactions contemplated by this Agreement shall have been instituted or threatened, ~~the effect of which on the Company, in~~ and (v) there shall not have been any ~~such case described in clause (i) or (ii) above, is~~ material change in the ~~reasonable~~ condition (financial or otherwise), business, management, results of operations or prospects of the Company and ~~good faith opinion~~ its subsidiaries which makes it impractical or inadvisable in the judgment of the Representatives ~~so material and adverse as to make it impracticable or inadvisable~~ to proceed with the public offering or purchase the ~~delivery of the~~ Common Shares ~~on the terms and in the manner~~ as contemplated ~~in the Registration Statement and the Prospectus~~hereby. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives There shall have ~~received opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company (as~~ been furnished to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representativesyou, as ~~the representatives~~ Representatives of the Underwriters, on each Closing Date, in form and substance satisfactory to you, except as otherwise expressly provided below: (i) An opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Company and the Selling Stockholder, addressed to the Underwriters and dated the First Closing ~~Date~~ Date, or the Second Closing ~~Date~~Date (in the latter case with respect to the Selling Stockholder only), as the case may be, to the effect that: (i1) ~~The~~ Each of the Company and its subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of ~~Delaware~~its jurisdiction of incorporation, ~~with full~~ is duly qualified to do business as a foreign corporation and is in good standing as a foreign corporation in each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, and each has all the corporate power and authority necessary to ~~own, lease and operate~~ own or hold its properties and conduct ~~its business as presently conducted and~~ the businesses as described in the ~~Prospectus and the Registration Statement~~Prospectus; (ii2) The Company's authorized capital stock of is as set forth under the ~~Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share,~~ heading "Capitalization" in the Prospectus and ~~77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and~~ all outstanding shares of such capital stock of (including the ~~Company immediately prior~~ Firm Common Shares to be sold by the ~~sale of~~ Selling Stockholder and the Optional Common Shares ~~hereunder~~ to be sold by the Selling Stockholder) have been duly ~~authorized~~ and validly issued, are fully paid and ~~nonassessable (except~~nonassessable, were not issued in violation of or subject to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, any preemptive rights or other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power securities and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the ~~requirements~~ description thereof contained in the Prospectus; (3) All of the ~~Delaware General Corporation Law~~ issued and ~~the rules and regulations~~ outstanding shares of the ~~New York Stock Exchange;~~ Company's subsidiaries have been duly and validly authorized and issued, are fully paid, nonassessable and owned of record by the Company, to the best of such counsel's knowledge, free and clear of all liens, encumbrances, equities or claims; (4) The certificates evidencing the Common Shares to be sold and delivered by the Company hereunder are in due and proper form under Delaware law, and when duly countersigned by the Company's transfer ~~agent~~agent and registrar, and delivered to ~~the Representatives~~ you or upon ~~the~~ your order ~~of the Representatives~~ against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Common Shares represented thereby will be duly authorized and validly issued, fully paid and ~~nonassessable~~ nonassessable, will not have been issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities and will conform in all respects to the description thereof contained in the Prospectus; (~~except~~5) Except as disclosed in or specifically contemplated by the Prospectus, to the ~~extent applicable~~best of such counsel's knowledge, ~~as otherwise provided in Section 180.0622(2)(b)~~ there are no outstanding options, warrants or other rights calling for the issuance of, and no commitments, plans or arrangements to issue, any shares of capital stock of the ~~Wisconsin Business Corporation Law, as judicially interpreted)~~Company or any security convertible into or exchangeable for capital stock of the Company; (viA) The Registration Statement has ~~become~~ been declared effective under the ~~Act~~ Act, and, to the knowledge of such counsel~~'s knowledge~~, no stop order suspending the effectiveness of the Registration Statement has been issued ~~and~~ and, to the knowledge of such counsel, no ~~proceedings~~ proceeding for that purpose ~~have been instituted~~ is pending or ~~are~~ threatened by the Commission; ~~the Registration Statement and~~ any required filing of the Prospectus and any ~~amendment~~ supplement thereto pursuant to Rule 424(b) of the Rules and Regulations has been made in the manner and within the time period required by such Rule 424(b); (B) The Registration Statement, the Prospectus and any amendments or ~~supplement thereto, including any document incorporated by reference into the Registration Statement~~ supplements thereto (~~except for~~ other than the financial ~~statements and~~ statements, schedules and other financial and statistical ~~or financial data~~ information included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the ~~Act;~~ Act and the ~~conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied~~Rules and Regulations; (~~vii~~C) To the best of such counsel's knowledge 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 subject which, if determined adversely to the Company or any of its subsidiaries, would have a material adverse effect on the consolidated financial position, stockholders' equity, results of operations or business of the Company and its subsidiaries, taken as a whole. To the best of such counsel's knowledge, no such proceedings are threatened or contemplated by any governmental authority or threatened by others. To the best of such counsel's knowledge, there ~~are~~ is no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreementfranchise, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or ~~required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or~~ to be filed as an exhibit to the Registration Statement, which is not described or filed as required, and the statements included in the Prospectus describing any legal proceedings or material contracts or agreements relating to the Company fairly summarize such matters. (D) The documents incorporated by reference in the ~~Registration Statement by the Act~~Prospectus (other than any financial statements, schedules and other financial and statistical information included in such documents, as to which ~~is not described~~such counsel need express no opinion), filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, when they were filed with the ~~Commission on December 9~~Commission, ~~1994, and~~ complied as to form in all material respects with the ~~Registration Statement under Item 15 insofar as such statements constitute a summary~~ requirements of the ~~legal matters, documents or proceedings referred to therein, fairly present~~ Exchange Act and the ~~information called for with respect to such legal matters, documents~~ rules and ~~proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance~~ regulations of the ~~Company's obligations hereunder~~ Commission thereunder; and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have has no reason to believe that ~~the Registration Statement including~~ any ~~document incorporated by reference therein~~of such documents (other than any financial statements, ~~on its effective date~~schedules and other financial and statistical information included in such documents, as to which such counsel need express no opinion), when they were so filed, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any an untrue statement of a material fact or omitted ~~or omits~~ to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were ~~made~~made when such documents were so filed, not ~~misleading~~ misleading; (~~provided that such counsel need express no belief regarding~~ 7) The Company has corporate power and corporate authority to enter into this Agreement, to issue, sell and deliver the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated Common Shares to be ~~based upon such counsel's knowledge or~~ sold by it to the several Underwriters, and to carry out all of the terms and provisions of this Agreement to be ~~given "to~~ carried out by it; the ~~knowledge~~ execution and delivery of ~~such counsel," such qualification shall signify that no information~~ this Agreement has ~~come to the attention of the attorneys in such firm who have~~ been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers duly authorized by all necessary corporate action of the Company and ~~any governmental officials~~this Agreement has been duly executed and delivered by the Company; this Agreement is a valid and binding agreement of the Company in accordance with its terms, except as enforceability may be limited by general equitable principles, bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally and ~~copies of all such certificates shall~~ except as to those provisions relating to indemnity or contribution for liabilities arising under the Act as to which no opinion need be ~~furnished to the Representatives and for the Underwriters on or before each Closing Date.~~expressed; (~~e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇~~ 8) Neither the ~~▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the~~ issue and sale of the Common Shares ~~hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished~~ to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of be sold by the Company, nor the consummation of any other of the transactions contemplated by this Agreement will conflict with or result in ~~their respective capacities as such~~a breach or violation of any of the terms or provisions of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the ~~effect that: (i) The representations and warranties~~ Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company ~~set forth in Section 2 hereof are true and correct as~~ or any of its subsidiaries is subject, which conflict, breach or violation would have a material adverse effect on the properties, business, results of operations or conditions (financial or otherwise) of the ~~date of this Agreement~~ Company and its subsidiaries, taken as a whole, nor will such actions result in any violation of the ~~date~~ provisions of ~~such certificate, and~~ the charter or bylaws of the Company ~~has complied in all~~ or any of its subsidiaries or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their respective properties, which violation would have a material ~~respects with all~~ adverse effect on the ~~agreements~~ business, properties, conditions or results of operations of the Company and ~~satisfied all~~ its subsidiaries, taken as a whole. Except for the ~~conditions~~ registration of the Common Shares to be ~~performed or satisfied~~ sold by ~~it at or prior to~~ the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending Company under the ~~Act~~ Securities Act, such consents, approvals, authorizations, registrations or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed qualifications as may be required under the Exchange Act and ~~deemed~~ applicable state securities laws in connection with the purchase and distribution of the Common Shares to be ~~incorporated~~ sold by ~~reference in~~ the ~~Registration Statement~~Company by the Underwriters and the approval of the underwriting arrangements by the NASD, no consent (other than consents which have been waived or satisfied), approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement or such ~~documents contain all statements~~ Common Shares by the Company and the consummation of ~~material fact required~~ the transactions contemplated thereby; (9) To the best of such counsel's knowledge, no holders of securities of the Company have rights which have not been waived to ~~be stated therein~~the registration of shares of Common Stock or other securities, ~~and do not include any untrue statement~~ because of ~~a material fact or omit to state any material fact required to be stated therein or necessary to make~~ the ~~statements therein not misleading, and since the date on which~~ filing of the Registration Statement ~~was initially filed~~by the Company or the offering contemplated hereby; (10) The execution and delivery of this Agreement and the Stockholders Agreement have been duly authorized by all necessary partnership action of the Selling Stockholder and this Agreement and the Stockholders Agreement have been duly executed and delivered by the Selling Stockholder; the Agent has been duly and validly authorized to act as the custodian of the Common Shares to be sold by the Selling Stockholder; and neither the sale of the Common Shares to be sold by the Selling Stockholder, nor the consummation of any other of the transactions contemplated by this Agreement will conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Selling Stockholder is a party or by which the Selling Stockholder is bound or to which any of the property or assets of the Selling Stockholder is subject, nor will such actions result in any violation of the provisions of the partnership agreement or similar documents of the Selling Stockholder or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Selling Stockholder or any of its properties. Except for the registration of the Common Shares to be sold by the Selling Stockholder under the Act, such consents, approvals, authorizations, registrations or qualifications as may be required under the Exchange Act and applicable state securities laws in connection with the purchase and distribution of the Common Shares to be sold by the Selling Stockholder by the Underwriters and the approval of the underwriting arrangements by the NASD, no ~~event~~ consent (other than consents which have been waived or satisfied), approval, authorization or order of, or filing or registration with, any such court or governmental agency or body is required for the execution, delivery and performance of this Agreement or such Common Shares by the Selling Stockholder and the consummation of the transaction contemplated thereby; (11) The Selling Stockholder has ~~occurred that was required~~ partnership power and partnership authority to enter into this Agreement and the Stockholders Agreement, to sell, transfer and deliver the Common Shares to be ~~set forth in an amended~~ sold by the Selling Stockholder hereunder, to carry out all of the terms and provisions of this Agreement to be carried out by it, and good and marketable title to such Common Shares so sold, free and clear of all liens, encumbrances, equities, claims, restrictions, security interests, voting trusts, or ~~supplemented prospectus or in an amendment~~ other defects of title whatsoever, has been transferred to the ~~Registration Statement that has not been so set fo~~Underwriters (whom counsel may assume to be bona fide purchasers) who have purchased such Common Shares hereunder; (12) To the best of such counsel's knowledge, this Agreement and the Stockholders Agreement are valid and binding agreements of the Selling Stockholder in accordance with their terms except as enforceability may be limited by general equitable principles, bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors' rights generally and except with respect to those provisions relating to indemnit

Appears in 1 contract

Sources: Underwriting Agreement (Orchard Supply Hardware Stores Corp)

Conditions of the Obligations of the Underwriters. The ------------------------------------------------- obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Certificates will be subject to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of the date hereof and as of each Closing Date~~Bank herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Bank made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Bank of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Prospectus and any supplements thereto shall have been ~~declared effective by~~ filed (if required) with the Commission ~~not later than 5:30 p.m., Washington, D.C. time, on~~ in accordance with the ~~date of this Agreement, or such later time~~ rules and date as shall have been consented to by the Representatives, which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A regulations under the Act ~~shall have been timely made;~~ and Section 1 hereof, and prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Bank, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or by any authority administering any state securities ~~commission for inclusion of additional information in the Registration Statement,~~ or ~~otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faith~~blue sky law. (b) On or prior to the date of the Prospectus and on or prior to the Closing Date, the Underwriters shall have received a letter or letters, dated as of the date of the Prospectus and as of the Closing Date, respectively, of Coopers & ▇▇▇▇▇▇▇ L.L.P., Certified Public Accountants, substantially in the form of the drafts to which the Representative has previously agreed and otherwise in form and substance satisfactory to the Representative and its counsel. (c) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred (i) any ~~change or development involving~~change, or ~~which could be reasonably expected to involve~~any development involving a prospective change, ~~a Material Adverse Effect~~in or affecting particularly the business or properties of the Trust, ~~whether~~ or ~~not arising from transactions~~ the Bank which, in the ~~ordinary course~~ judgment of ~~business~~the Representative, ~~and~~ materially impairs the investment quality of the Certificates or makes it impractical or inadvisable to market the Certificates; (ii) any suspension or limitation on trading in securities generally on the ~~Company shall not have sustained~~ New York Stock Exchange or the National Association of Securities Dealers National Market system, or any ~~loss~~ setting of minimum prices for trading on such exchange or ~~interference from~~ market system; (iii) any ~~labor dispute~~suspension of trading of any securities of BANC ONE CORPORATION on any exchange or in the over-the-counter market which materially impairs the investment quality of the Certificates or makes it impractical or inadvisable to market the Certificates; (iv) any banking moratorium declared by Federal, ~~strike~~Delaware or New York authorities; or (v) any outbreak or escalation of major hostilities or armed conflict, ~~fire~~any declaration of war by Congress, ~~flood~~or any other substantial national or international calamity or emergency if, ~~windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect~~in the judgment of the Representative, the effect of ~~which on the Company, in~~ any such ~~case described in clause (i)~~ outbreak, escalation, declaration, calamity, or ~~(ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make~~ emergency makes it ~~impracticable~~ impractical or inadvisable to proceed with completion of the ~~public offering~~ sale of and payment for the Certificates. (d) At the Closing Date, the Bank shall have furnished to the Representative certificates of a vice president or more senior officer of the Bank as to the accuracy of the representations and warranties of the Bank herein at and as of the Closing Date, as to the performance by the Bank of all of its obligations hereunder to be performed at or prior to such Closing Date, and as to such other matters as the Representative may reasonably request. (e) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Associate General Counsel of First USA Bank, shall have furnished to the Representative her written opinion, addressed to the Representative and dated the Closing Date, in form and substance satisfactory to the Representative and its counsel, substantially to the effect that: (i) The Bank has been duly incorporated and is validly existing as a bank in good standing under the laws of the State of Delaware with full power and authority (corporate and other) to own its properties and conduct its business, as presently owned and conducted by it, and to enter into and perform its obligations under this Agreement, the Spread Account Agreement and the Pooling and Servicing Agreement (collectively referred to in this subsection (e) as the "Agreements"), and the Certificates and had at all times, and ---------- now has, the power, authority and legal right to acquire, own and transfer the Receivables; (ii) The Bank is duly qualified to do business and is in good standing, and under state laws, as they are currently interpreted and enforced, has obtained all necessary licenses and approvals in each jurisdiction in which failure to qualify or to obtain such licenses or approvals would materially and adversely affect the enforceability of any Receivable by the Bank or the Trustee or would adversely affect the ability of the Bank to perform its obligations under the Agreements or the Certificates; (iii) The Certificates have been duly authorized, executed and delivered by the Bank and, when duly authenticated by the Trustee in accordance with the terms of the Pooling and Servicing Agreement and de livered to and paid for by the Underwriters in accordance with the terms of this Agreement, will be validly issued and outstanding and entitled to the benefits provided by the Pooling and Servicing Agreement; (iv) Each of the Agreements has been duly authorized, executed and delivered by the Bank and constitutes the legal, valid and binding agreement of the Bank enforceable against the Bank in accordance with its terms, subject, as to enforceability to (A) the effect of bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and other similar laws relating to or affecting the rights and remedies of creditors generally, and (B) the application of principles of equity (regardless of wheth er considered and applied in a proceeding in equity or at law) and the rights and powers of the FDIC; (v) The Trust is not now, and immediately following the sale of the Certificates pursuant to the Underwriting Agreement will not be, required to register under the 1940 Act; (vi) No consent, approval, authorization or order of any governmental agency or body is required for (A) the execution, delivery and performance by the Bank of its obligations under the Agreements or the Certificates, or (B) the issuance or sale of the Certificates, except such as have been obtained under the Act and as may be required under state securities or blue sky laws in connection with the purchase and distribution of the Certificates by the Un derwriters and the filing of Uniform Commercial Code financing statements with respect to the Receivables and the approval of the Office of the State Bank Commissioner of the State of Delaware; (vii) To the best knowledge of such counsel, neither the execution and delivery of the ~~Shares on~~ Agreements or the Certificates by the Bank nor the performance by the Bank of the transactions therein contemplated nor the fulfillment of the terms thereof does or will result in any violation of any statute or regulation or any order or decree of any court or governmental authority binding upon the Bank or its property, or conflict with, or result in a breach or violation of any term or provision of, or result in a default under any of the terms and provisions of, the Bank's charter or by-laws or any material indenture, loan agreement or other material agreement to which the Bank is a party or by which the Bank is bound; (viii) To the knowledge of such counsel after due investigation, there are no legal or governmental proceedings pending to which the Bank is a party or to which the Bank is subject which, individually or in the ~~manner~~ aggregate (A) would have a material adverse effect on the ability of the Bank to perform its obligations under the Agreements or the Certificates, (B) assert the invalidity of the Agreements or the Certificates, (C) seek to prevent the issuance, sale or delivery of the Certificates or any of the transactions contemplated by the Agreements or (D) seek to affect adversely the federal income tax or ERISA attributes of the Certificates described in the Prospectus; (ix) The Registration Statement and the Prospectus (except for the financial statements, financial schedules and other financial and operating data included therein, as to which such counsel expresses no view) comply as to form with the Act and the Rules and Regulations; (x) The Registration Statement has become effective under the Act, and the Prospectus Supplement will be filed with the Commission pursuant to Rule 424(b) thereunder; and (xi) Such counsel has not independently verified and is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the information contained in the Registration Statement and Prospectus. Based upon discussion with the ~~Prospectus. (c) The Representatives shall not~~ Bank, its accountants and others, however, no facts have ~~advised the Company~~ come to its attention that cause it to believe that the ~~Registration Statement or~~ Prospectus (except for the financial statements, financial schedules and other financial and statistical data included therein, as to which such counsel expresses no view), contains an any untrue statement of a material fact ~~that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material~~ or omits to state a material fact ~~that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is~~ required to be stated therein or necessary in order to make the statements therein not misleading. (df) The ~~Representatives~~ Representative shall have received ~~opinions of Foley~~ a letter from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ~~Lardner~~▇▇▇▇ LLP, special ~~couns~~counsel for the Bank, to the effect that the Representative may rely on those provisions of their opinions to ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") and Standard & Poor's Ratings ------- Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("Standard & Poor's") ----------------- with respect to certain matters relating to the transfer of the Receivables to the Trust, with respect to the perfection of the Trust's interest in the Receivables and with respect to other related matters. (g) The Representative shall have received an opinion of Skadden, Arps, Slate, ▇▇~~r the Company (as~~ ▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel to the ~~matters set forth below in subsections (i)~~Bank, (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the ~~Representatives~~Representative, dated the Closing Date and satisfactory in form and substance to the Representative and its counsel, to the effect that the Certificates will be treated as ~~the representatives of~~ indebtedness for Federal income tax purposes and for Delaware income tax purposes. (h) The Representative shall have received from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, ~~and~~ such opinion or opinions, dated the ~~First Closing Date or the Second~~ Closing Date, ~~as the case may be,~~ substantially to the effect that: (i) ~~The Company~~ Each of the Pooling and Servicing Agreement and the Spread Account Agreement (collectively referred to in this subsection (h) as the "Agreements") constitutes the valid and binding ----------- obligation of the Bank, enforceable against the Bank in accordance with its terms, except (x) to the extent that the enforceability thereof may be limited by (a) bankruptcy, insolvency, receivership, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and the rights of creditors of Delaware chartered banks as the same may be applied in the event of the bankruptcy, insolvency, receivership, reorganization, moratorium or other similar event in respect of the Bank, (b) general principles of equity (regardless of whether enforceability is ~~validly existing~~ considered in a proceeding at law or in equity) and (c) the qualification that certain of the remedial provisions of the Agreements may be unenforceable in whole or in part, but the inclusion of such provisions does not affect the validity of the Agreements taken as a ~~corporation in good standing under the laws of Delaware~~whole, ~~with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus~~ and the ~~Registration Statement~~Agreements, together with applicable law, contain adequate provisions for the practical realization of the benefits of the security created thereby and (y) such counsel expresses no opinion as to the enforceability of any rights to contribution or indemnification which are violative of public policy underlying any law, rule or regulation; (ii) The ~~authorized capital stock~~ Certificates, when executed and authenticated in accordance with the terms of the ~~Company consists~~ Pooling and Servicing Agreement and delivered to and paid for by the Underwriters pursuant to this Agreement, will be duly and validly issued and outstanding and will be entitled to the benefits of ~~60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share,~~ the Pooling and ~~77,000,000 shares of preferred stock, $1.00 par value per share~~Servicing Agreement; (iii) ~~The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have~~ This Agreement has been duly ~~authorized~~ authorized, executed and ~~validly issued, are fully paid and nonassessable (except, to~~ delivered by the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rightsBank; (iv) ~~The Significant Subsidiary is validly existing as a corporation in good standing~~ Neither the execution, delivery or ~~active status under~~ performance by the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all Bank of the ~~issued~~ Agreements or this Agreement, nor the compliance by the Bank with the terms and ~~outstanding capital stock~~ provisions thereof or hereof, will contravene any provision of ~~the Significant Subsidiary~~any applicable law; (v) Based on such counsel's review of applicable laws, no governmental approval, which has not been obtained or taken and is not in full force and effect, is required to authorize or is required in connection with the execution, delivery or performance of the Agreements by the Bank; (vi) The ~~certificates for~~ Certificates, the ~~Shares~~ Agreements and this Agreement conform in all material respects to the descriptions thereof contained in the Prospectus; (vii) The Pooling and Servicing Agreement is not required to be ~~delivered hereunder conform~~ qualified under the Trust Indenture Act of 1939, as amended, and the Trust is not required to be registered under the 1940 Act; (viii) The statements in the Prospectus under the heading "Certain Legal Aspects of the Receivables", to the extent that they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct in all material respects; and (ix) Each of the Registration Statement, as of its effective date, and the Prospectus, as of its date, appeared on its face to be appropriately responsive in all material respects to the requirements of the ~~Delaware General Corporation Law~~ Act and the ~~rules~~ General Rules and ~~regulations of~~ Regulations under the ~~New York Stock Exchange; and when duly countersigned by the Company's transfer agent~~Act, ~~and delivered~~ except that in each case such counsel expresses no opinion as to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending therein or ~~threatened legal or governmental proceedings that are required to be described in the Registration Statement~~ excluded therefrom or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit exhibits to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and ~~that, although~~ such counsel ~~is not verifying, is not passing upon and~~ does not assume any responsibility for the accuracy, completeness or fairness of the statements contained ~~or incorporated by reference into~~ in the Registration Statement or and the Prospectus. Such opinion shall also state that such counsel has participated in conferences with officers and representatives of the Bank, counsel for the Bank, representatives of the independent accountants of the Bank and the Underwriters at which the contents of the Prospectus and related matters were discussed and, although such counsel need not pass upon, and need not assume any responsibility for, the accuracy, completeness or fairness of the statements contained in the Prospectus and shall have made no independent check or verification thereof, except for those made under the caption "Certain Legal Aspects of the Receivables" to the extent set forth in paragraph (viii) above, on the basis of the ~~information~~ foregoing, no facts shall have come to such counsel's attention that ~~was developed in the course of the performance of~~ shall have led such ~~services, they have no reason~~ counsel to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus~~, or any amendment or supplement thereto including any document incorporated by reference therein~~, as of its ~~issue date and as of the Closing Date~~date, contained ~~or contains any~~ an untrue statement of a material fact or omitted ~~or omits~~ to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not ~~misleading (provided~~ misleading, except that such counsel need not express no an opinion or belief ~~regarding~~ with respect to the financial ~~statements and related~~ statements, schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information ~~has come to the attention of the attorneys~~ included in such ~~firm who have been involved in the preparation~~ Prospectus or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Dateexcluded therefrom. (ei) ~~The Representatives shall have received an opinion of Michael Best~~ McGuire, Woods, Battle & ~~Friedrich LLP,~~ ▇▇▇▇▇▇~~▇ ▇▇▇~~ , L.L.P., counsel for The Bank of New York, a New York banking corporation ("BONY"), in connection with the ~~▇▇▇▇▇▇▇▇ters~~Agency ---- Agreement dated as of December 4, ~~dated~~ 1995 between BONY and the ~~First Closing Date or~~ Trustee (the ~~Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require~~"Agency ------ Agreement"), and counsel for the ~~Company~~ Trustee, shall have furnished to ~~such counsel such documents~~ the --------- Representative their written opinion, addressed to the Representative and ~~shall have exhibited to them such papers and records as such counsel reasonably request for~~ dated the ~~purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each~~ Closing Date, ~~a certificate of Kenneth W. Krueger~~in form and substance satisfactory to the Representative and its counsel, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, substantially to the effect that: (i) ~~The representations~~ BONY is a banking corporation duly organized, validly existing and ~~warranties~~ in good standing under the laws of the ~~Company set forth in Section 2 hereof are true~~ State of New York and ~~correct as of~~ has the ~~date of this Agreement~~ corporate power and ~~as of~~ authority to execute, deliver and perform its obligations under the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificateAgency Agreement; (ii) ~~The Commission has not issued an order preventing or suspending~~ the ~~use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has~~ Certificates have been ~~issued; and~~ duly authenticated by BONY pursuant to the ~~knowledge of~~ Agency Agreement and in accordance with the ~~respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction~~Pooling and Servicing Agreement; (iii) ~~Each~~ the Trustee is a banking corporation duly organized, validly existing and in good standing under the laws of the ~~respective signatories~~ State of Delaware and has ~~examined~~ the ~~Registration Statement~~ corporate power and ~~the Prospectus~~authority to execute, deliver and ~~any amendment or supplement thereto, including any documents filed~~ perform its obligations under the ~~Exchange Act~~ Pooling and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set foServicing Agreement

Appears in 1 contract

Sources: Underwriting Agreement (First Usa Credit Card Master Trust)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall be~~ to purchase and pay for the Firm Shares on the Closing Date and the Additional Shares on any Option Closing Date are subject to the ~~accuracy~~ fulfillment of each of the ~~representations~~ following conditions on or prior to the Closing Date and ~~warranties on the part of the Company herein set forth as of the date hereof and as of~~ each Option Closing Date, to the accuracy of the statements of the Company's officers made pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder, and to the following additional conditions, unless waived in writing by the Representatives: (a) All the representations and warranties of the Offerors contained in this Agreement and in any certificate delivered hereunder shall be true and correct on the Closing Date and each Option Closing Date with the same force and effect as if made on and as of the Closing Date or Option Closing Date, as applicable. The Offerors shall not have failed at or prior to the Closing Date or Option Closing Date, as applicable, to perform or comply in all material respects with any of the agreements herein contained and required to be performed or complied with by the Offerors at or prior to the Closing Date or the Option Closing Date, as applicable. (b) If the Registration Statement is not effective at the time of the execution and delivery of this Agreement, the Registration Statement shall have ~~been declared~~ become effective by (or, if a post-effective amendment is required to be filed pursuant to Rule 430A under the ~~Commission~~ Act, such post-effective amendment shall have become effective) not later than ~~5:30 p.m.~~9:30 A.M., ~~Washington, D.C.~~ New York City time, on the date of this ~~Agreement,~~ Agreement or such later time ~~and date~~ as ~~shall have been consented to by~~ the ~~Representatives~~Representatives may approve in writing or, ~~which consent shall be deemed to have been given~~ if the Registration Statement has been declared effective prior to the execution and delivery hereof in reliance on Rule 430A, the Prospectus shall have been ~~declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under~~ filed as required by the Act, if necessary; ~~all filings required by Rules 424(b)~~ and ~~430A under~~ at the ~~Act shall have been timely made;~~ Closing Date and each applicable Option Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor, to the knowledge of the Company, shall any~~ and no proceedings for that purpose shall have been ~~instituted~~ commenced or ~~threatened~~shall be pending before or, to the best knowledge of the Underwriters or the Offerors, threatened by the Commission; ~~and any~~ every request for additional information on the part of the Commission ~~or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise,~~ shall have been complied with to the ~~reasonable satisfaction of~~ Underwriters' satisfaction; no stop order suspending the Representatives acting in good faith. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery sale of the Shares on in any jurisdiction referred to in Section 5(g) shall have been issued and no proceeding for that purpose shall have been commenced or shall be pending or, to the ~~terms and in~~ best knowledge of the ~~manner contemplated in~~ Underwriters or the ~~Registration Statement and the Prospectus~~Offerors, threatened. (c) The ~~Representatives~~ Shares shall ~~not~~ have been qualified for sale under the Blue Sky laws of such states as shall have been specified by the Representatives. (d) The legality and sufficiency of the authorization, issuance and sale or transfer and sale of the Shares hereunder, the validity and form of the certificates representing the Shares, the execution and delivery of this Agreement and all corporate proceedings and other legal matters incident thereto, and the form of the Registration Statement and the Prospectus (except financial statements) shall have been approved by counsel for the Underwriters exercising reasonable judgment, and no Underwriter shall have advised the ~~Company~~ Offerors that the Registration Statement or ~~Prospectus~~ the Prospectus, or any amendment or supplement thereto, contains an untrue statement of ~~fact that~~material fact, ~~in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material~~ or omits to state a fact ~~that,~~ that in the ~~reasonable and good faith~~ Underwriters' opinion ~~of the Representatives or such counsel,~~ is material and is required to be stated therein or is necessary to make the statements therein not misleading. (de) ~~The Representatives shall have received opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company (as~~ Subsequent to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this ~~Agreement~~ Agreement, there shall not have occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting particularly the ~~consummation~~ business or properties of the ~~transactions contemplated by this Agreement (except for compliance with the Act~~Trust, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or any Subsidiary, whether or not arising in the ~~Significant Subsidiary; (B) violate any~~ ordinary course of business, that, in the reasonable judgment of the ~~provisions of~~Representatives, makes it impractical or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument inadvisable to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor proceed with the ~~giving of notice~~ public offering or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale purchase of the Shares ~~hereunder, the Registration Statement and other related matters~~ as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matterscontemplated hereby. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set fo

Appears in 1 contract

Sources: Underwriting Agreement (Us Home & Garden Trust I)

Conditions of the Obligations of the Underwriters. The obligations of ~~the several Underwriters under this Agreement shall be~~ each Underwriter hereunder are subject to the accuracy of the representations and warranties on the part of the Company herein set forth as of the date hereof and as of each Closing Date, to the accuracy of the statements of the Company's officers made pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder, and to the following ~~additional~~ conditions~~, unless waived in writing by the Representatives~~: (a) ~~The Registration Statement~~ All filings required by Rule 424 and Rule 430A of the Rules and Regulations shall have been ~~declared~~ made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by ~~the Commission not later than 5:30~~ 10:00 p.m., Washington, D.C. time, on the date of this Agreement, or such later time and date as shall have been consented to by the Representatives, which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b. (i) ~~and 430A under the Act shall have been timely made; no~~ No stop order suspending the effectiveness of the Registration Statement or preventing or suspending the use of the Base Prospectus, any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall be pending or threatened by the Commission, (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the Commission or the authorities of any ~~state securities commission nor~~such jurisdiction, to (iii) any request for additional information on the ~~knowledge~~ part of the ~~Company, shall any proceedings for that purpose have been instituted or threatened; and any request~~ staff of the Commission or any ~~state securities commission for inclusion of additional information in the Registration Statement, or otherwise,~~ such authorities shall have been complied with to the ~~reasonable~~ satisfaction of the ~~Representatives acting~~ staff of the Commission or such authorities, and (iv) after the date hereof no amendment or supplement to the Registration Statement, the Prospectus or the Pricing Prospectus shall have been filed unless a copy thereof was first submitted to the Representative and the Representative do not object thereto in good faith. (bc) ~~Subsequent to~~ Since the ~~execution~~ respective dates as of ~~this Agreement,~~ which information is given in the Registration Statement and the Pricing Prospectus, (i) there shall not have ~~occurred~~ been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any ~~change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect~~of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, ~~and~~ in each case other than as described in or contemplated by the Registration Statement and the Pricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall ~~not~~ have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor ~~dispute, strike, fire, flood, windstorm, accident~~ dispute or ~~other calamity (whether or not insured) or from~~ any court or legislative or other governmental action, order or ~~decree having a Material Adverse Effect~~decree, ~~the effect of~~ which ~~on the Company, in any such case~~ is not described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Pricing Prospectus~~. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that~~, if in the ~~reasonable and good faith opinion~~ judgment of the ~~Representatives~~ Representative any such development makes it impracticable or ~~counsel for~~ inadvisable to consummate the ~~Underwriters, is material or omits to state a fact that, in the reasonable~~ sale and ~~good faith opinion~~ delivery of the ~~Representatives or such counsel, is material and is required to be stated therein or necessary to make~~ Shares by the ~~statements therein not misleading~~Underwriters at the public offering price. (d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would, in the judgment of the Representative, have a Material Adverse Effect or if, in the judgment of the Representative, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the public offering price. (e) Each of the representations and warranties of the Company and the Selling Stockholder contained herein shall be true and correct in all respects (in the case of any representation and warranty containing a materiality or Material Adverse Effect qualification) or in all material respects (in the case of any other representation and warranty) at the Closing Date and, with respect to the Option Shares, at the applicable Option Closing Date, and all covenants and agreements contained herein to be performed on the part of the Company and the Selling Stockholder and all conditions contained herein to be fulfilled or complied with by the Company and the Selling Stockholder at or prior to the Closing Date and, with respect to the Option Shares, at or prior to the applicable Option Closing Date, shall have been duly performed, fulfilled or complied with. (f) The ~~Representatives~~ Representative shall have received ~~opinions of Foley & Lardner~~an opinion and negative assurance letter, ~~special couns~~each dated the Closing Date and, with respect to the Option Shares, the applicable Option Closing Date, from ▇▇▇▇▇▇ & ▇▇~~r the Company (as~~ ▇▇▇▇ LLP, counsel to the ~~matters set forth below~~ Company, in ~~subsections (i)~~form and substance previously agreed to between Faegre Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and Faegre Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ~~(ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as~~ counsel to the ~~matters set forth in subsections~~ Underwriters. (~~iii)~~g) The Representative shall have received an opinion, ~~(iv)~~dated the Closing Date and, ~~(v), (vii), (x), (xi), (xii) and (xiii) addressed~~ with respect to the ~~Representatives~~Option Shares, as the ~~representatives of~~ applicable Option Closing Date, from ▇▇▇▇▇ Lovells US LLP, counsel to the Selling Stockholder, in form and substance previously agreed to between ▇▇▇▇▇ Lovells US LLP and Faegre Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Underwriters. (h) The Representative shall have received an opinion, ~~and~~ including a negative assurance statement, dated the ~~First~~ Closing Date or the ~~Second~~ applicable Option Closing Date, as the case may be, from Faegre Drinker ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representative. (i) Concurrently with the execution and delivery of this Agreement, each Accountant shall have furnished to the Representative a letter, dated the date of its delivery, addressed to the Representative and in form and substance satisfactory to the Representative, confirming that it’s an independent accountant with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Closing Date and, as to the Option Shares, the applicable Option Closing Date, each Accountant shall have furnished to the Representative a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from such Accountant, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the applicable Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date or the applicable Option Closing Date, as the case may be. (j) At the Closing Date and, as to the Option Shares, the applicable Option Closing Date, there shall be furnished to the Representative a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as such, in form and substance satisfactory to the Representative, to the effect that: (i) ~~The Company is validly existing as a corporation in good standing under~~ Each signer of such certificate has carefully examined the ~~laws of Delaware~~Registration Statement, ~~with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in~~ the Prospectus and the ~~Registration Statement;~~ General Disclosure Package (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in into the ~~Registration Statement~~Pricing Prospectus and the Prospectus) and (A) as of the date of such certificate, ~~and~~ such documents ~~contain~~ are true and correct in all ~~statements of~~ material ~~fact required to be stated therein,~~ respects and do not ~~include any untrue statement of a material fact or~~ omit to state ~~any~~ a material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading~~untrue or misleading and (B) in the case of the certificate delivered at the Closing Date and the applicable Option Closing Date, ~~and~~ since the ~~date on which the Registration Statement was initially filed,~~ Effective Date no event has occurred ~~that was~~ as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein not untrue or misleading. (ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects (in the case of any representation and warranty containing a materiality or Material Adverse Effect qualification) or in all material respects (in the case of any other representation and warranty). (iii) Each of the covenants required to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be satisfied or fulfilled on or prior to the date of such certificate has been duly, timely and fully satisfied or fulfilled. (iv) Attesting that the conditions contained in Sections 7(b)(i)-(iii) are true and correct (provided, that, as it relates to proceedings threatened, such officers may rely upon the best of their information and belief). (k) At the Closing Date and, as to the Option Shares, the applicable Option Closing Date, there shall be furnished to the Representative a certificate, dated the date of its delivery, signed by the Selling Stockholder, in form and substance reasonably satisfactory to the Representative, (A) confirming that the representations of the Selling Stockholder set forth in ~~an amended~~ Sections 4(e), 4(f) and 4(g) hereof are true and correct and (B) confirming that the other representations and warranties of the Selling Stockholder in this Agreement are true and correct in all material respects and that the Selling Stockholder has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or ~~supplemented prospectus~~ satisfied hereunder at or ~~in an amendment~~ prior to such Closing Date. (l) On or prior to the Closing Date, the Representative shall have received the executed agreements referred to in Section 5(m). (m) The Shares shall be qualified for sale in such jurisdictions as the Representative may reasonably request and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date or the applicable Option Closing Date. (n) If required, the Company shall have filed a Listing of Additional Shares Notification Form with respect to the Shares with Nasdaq and shall have received no objection thereto from Nasdaq. (o) The Company and the Selling Stockholder shall have furnished to the Representative such certificates (including a Secretary’s Certificate and any good standing certificates), in addition to those specifically mentioned herein, as the Representative may have reasonably requested as to the accuracy and completeness at the Closing Date and the applicable Option Closing Date of any statement in the Registration ~~Statement that has not been so set fo~~Statement, the Prospectus or the General Disclosure Package, as to the accuracy at the Closing Date and the applicable Option Closing Date of the representations and warranties of the Company and/or the Selling Stockholder herein, as to the performance by the Company and/or the Selling Stockholder of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Representative.

Appears in 1 contract

Sources: Underwriting Agreement (CuriosityStream Inc.)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company ~~herein set forth as of~~ and the ~~date hereof and as of each Closing Date~~Selling Stockholders herein, to the accuracy of the statements of ~~the Company's~~ Company officers made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company and the Selling Stockholders of ~~its~~ their obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The Representatives shall have received a letter, dated the date of this Agreement, of Ernst & Young llp in form and substance reasonably satisfactory to the Representatives concerning certain financial information with respect to the Company set forth in the Prospectus. (b) The Representatives shall have received a letter, dated the date of this Agreement, of (i) Deloitte & Touche LLP in form and substance reasonably satisfactory to the Representatives concerning the financial information with respect to TXUCV set forth in the Prospectus and (ii) Deloitte & Touche LLP; in form and substance reasonably satisfactory to the Representatives concerning the financial information with respect to GTE M▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ # ▇▇ Limited Partnership set forth in the Prospectus. (c) If the Effective Time of the Initial Registration Statement is not prior to the execution and delivery of this Agreement, such Effective Time shall have ~~been declared effective by the Commission~~ occurred not later than ~~5:30 p.m.~~10:00 P.M., ~~Washington, D.C.~~ New York time, on the date of this ~~Agreement,~~ Agreement or such later ~~time and~~ date as shall have been consented to by ~~the Representatives~~CSFB, which consent shall not be ~~deemed to have been given if~~ unreasonably withheld or delayed. If the Effective Time of the Additional Registration Statement (if any) is not prior to the execution and delivery of this Agreement, such Effective Time shall have occurred not later that 10:00 P.M., New York time, on the date of this Agreement or, if earlier, the time the Prospectus is printed and distributed to any Underwriter, or shall have occurred at such later date as shall have been ~~declared effective on or before~~ consented to by CSFB. If the ~~date and time requested in the acceleration request submitted on behalf~~ Effective Time of the ~~Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the~~ Initial Registration Statement shall have been issued by the Commission or any state securities commission nor, to the knowledge of the Company, shall any proceedings for that purpose have been instituted or threatened; and any request of the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faith. (b) Subsequent is prior to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and ~~good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the~~ delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives shall have received opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the ~~Shares represented thereby will be duly authorized~~ Prospectus shall have been filed with the Commission in accordance with the Rules and ~~validly issued, fully paid~~ Regulations and ~~nonassessable (except, to the extent applicable, as otherwise provided in~~ Section ~~180.0622(2)(b~~5(a) of ~~the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and,~~ this Agreement. Prior to such ~~counsel's knowledge~~Closing Date, no stop order suspending the effectiveness of ~~the~~ a Registration Statement ~~has~~ shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of any Selling Stockholder, the Company or ~~are threatened~~ the Representatives, shall be contemplated by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied;. (~~vii~~d) ~~To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required~~ Subsequent to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this ~~Agreement~~ Agreement, there shall not have occurred (i) any change, or any development or event that would reasonably be expected to have a change, in the ~~consummation~~ condition (financial or other), business, properties or results of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws operations of the Company and its subsidiaries, taken as a whole, which, in the reasonable judgment of a majority in interest of the Underwriters, including CSFB, is material and adverse and makes it impractical to proceed with the completion of the public offering or the ~~Significant Subsidiary~~sale of and payment for the Offered Securities; (Bii) ~~violate~~ any downgrading in the rating of any debt securities of the ~~provisions of, or result in~~ Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant SubsidiaryAct), or any ~~of their respective owned~~ public announcement that any such organization has under surveillance or ~~leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation~~ review its rating of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other debt securities of the ~~Company~~Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any change in U.S. or ~~securities that are convertible~~ international financial, political or ~~exchangeable into Common Stock~~ economic conditions or ~~other securities~~ currency exchange rates or exchange controls as would, in the reasonable judgment of a majority in interest of the ~~Company~~Underwriters including CSFB, ~~that have rights~~ be likely to prejudice materially the ~~registration~~ success of ~~such~~ the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities ~~under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading~~ generally on the New York Stock Exchange; , or any setting of minimum prices for trading on such exchange; (~~xiii~~v) ~~To such counsel's knowledge, neither~~ or any suspension of trading of any securities of the Company ~~nor~~ on any exchange or in the ~~Significant Subsidiary is~~over-the-counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States or (viii) any attack on, ~~nor with~~ outbreak or escalation of hostilities or act of terrorism involving the ~~giving~~ United States, any declaration of ~~notice~~ war by Congress or ~~passage of time~~ any other national or ~~both would be~~international calamity or emergency if, in ~~violation~~ the judgment of ~~its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined~~ a majority in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives interest of the Underwriters ~~and their counsel during which~~ including CSFB, the ~~content~~ effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the ~~Registration Statement~~ public offering or sale of and ~~the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility~~ payment for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing DateOffered Securities. (e) The Representatives shall have received an ~~opinion~~ opinion, dated the Closing Date, of ~~Michael Best~~ King & ~~Friedrich LLP~~Spalding llp, ▇▇special New York counsel for the Company, in form and substance reasonably satisfactory to the Representatives. (f) The Representatives shall have received the opinions, dated the Closing Date, of (i) S▇▇▇▇▇ ▇▇▇▇▇▇ llp, special Illinois regulatory counsel for the Company, (ii) Naman, Howell, S▇▇▇▇ & L▇▇, llp, special Texas regulatory counsel for the Company, and (iii) S▇▇▇▇▇▇ Berlin LLP, special federal regulatory counsel for the Company, in each case in form and substance reasonably satisfactory to the Representatives. (g) The Representatives shall have received opinions, dated such Closing Date, of (i) King & Spalding llp, counsel for the Selling Stockholders other than Providence Equity and Spectrum Equity; provided that such opinion shall only be required to be delivered on any Optional Closing Date, (ii) Weil, Gotshal & M▇▇▇~~ters~~▇▇ LLP, counsel for the Providence Equity and (iii) Proskauer Rose LLP, counsel for the Spectrum Equity, each in form and substance reasonably satisfactory to the Representatives. (h) The Representatives shall have received from C▇▇▇▇▇ ▇▇▇▇▇▇ & R▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated ~~the First Closing Date or the Second~~ such Closing Date~~, as the case may be~~, with respect to the ~~sale~~ incorporation of the ~~Shares hereunder~~Company, the validity of the Offered Securities delivered on such Closing Date, the Registration ~~Statement~~ Statements, the Prospectus and other related matters as the Representatives may reasonably require, and the Selling Stockholders and the Company shall have furnished to such counsel such documents ~~and shall have exhibited to them such papers and records~~ as ~~such counsel~~ they may reasonably request for the purpose of enabling them to pass upon such matters. (fi) The Representatives shall have received ~~on each~~ a certificate, dated such Closing Date, of the President or any Vice President and a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, principal financial or accounting officer of the Company, in ~~their respective capacities~~ such person’s capacity as ~~such~~an officer of the Company, in which such officers, to the ~~effect~~ best of their knowledge after reasonable investigation, shall state that: : (iA) ~~The~~ the representations and warranties of the Company ~~set forth~~ in ~~Section 2 hereof~~ this Agreement are true and correct as (in the case of any such representation or warranty to the ~~date of this Agreement~~ extent subject to a materiality qualification) or true and ~~as of the date of such certificate, and the Company has complied~~ correct in all material respects (in the case of any such representation or warranty to the extent not subject to a materiality qualification); (B) the Company has in all material respects complied with all ~~the~~ agreements and satisfied all ~~the~~ conditions on its part to be performed or satisfied ~~by it~~ hereunder at or prior to the ~~date of such certificate;~~ Closing Date; (iiC) ~~The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto;~~ no stop order suspending the effectiveness of ~~the Registration~~ any Registra- tion Statement has been ~~issued;~~ issued and ~~to the knowledge of the respective signatories,~~ no proceedings for that purpose have been ~~initiated~~ instituted or are ~~pending~~ contemplated by the Commission; (D) the Additional Registration Statement (if any) satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule 462(b), including payment of the applicable filing fee in accordance with Rule 111(a) or (b) under the ~~Act or under~~ Act, prior to the ~~Blue Sky Laws of~~ time the Prospectus was printed and distributed to any ~~jurisdiction;~~ Underwriter; and (~~iii~~E) ~~Each~~ that, subsequent to the date of the ~~respective signatories has examined the Registration Statement and~~ most recent financial statements contained in the Prospectus, ~~and~~ there has been no material adverse change, nor any ~~amendment~~ development or ~~supplement thereto~~event that would reasonably be expected to have a material adverse change, ~~including any documents filed under the Exchange Act and deemed to be incorporated by reference~~ in the ~~Registration Statement~~condition (financial or other), business, properties or results of operations of the Company and ~~such documents contain all statements of material fact required to be stated therein~~its subsidiaries taken as a whole, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be except as set forth in ~~an amended~~ or ~~supplemented prospectus~~ contemplated by the Prospectus or as described in ~~an amendment~~ such certificate. (j) The Representatives shall have received (i) from Ernst & Young LLP a letter dated the Closing Date bringing down to three days before the Closing Date the information set forth in its letter referred to in Section 6(a) and (ii) from Deloitte & Touche LLP a letter dated the Closing Date bringing down to three days before the Closing Date the information set forth in its letter referred to in Section 6(b). (k) On or prior to the ~~Registration Statement that has not been so set fo~~First Closing Date CCI and Texas Acquisition shall have amended and restated the Credit Agreement or shall have entered into the New Credit Agreement. (l) The Representatives shall have received signed lock-up agreements in the form of Exhibit A hereto from each of the parties listed on Schedule D. The Selling Stockholders and the Company will furnish the Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. CSFB may in its reasonable discretion waive on behalf of the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in respect of an Optional Closing Date or otherwise.

Appears in 1 contract

Sources: Underwriting Agreement (Consolidated Communications Illinois Holdings, Inc.)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Bonds will be subject to the accuracy of the representations and warranties on the part of the Company ~~herein set forth as of the date hereof and as of each Closing Date~~herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Company made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Prospectus shall have been ~~declared effective~~ filed by the Company with the Commission ~~not later than 5:30 p.m.~~pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the 1933 Act Regulations, ~~Washington, D.C. time, on the date of this Agreement, or such later time~~ and ~~date as~~ each Permitted Free Writing Prospectus shall have been ~~consented to~~ filed by the ~~Representatives, which consent shall be deemed to have been given if~~ Company with the ~~Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives~~ Commission pursuant to Rule ~~461 under~~ 433 within the ~~Act; all filings required~~ applicable time period prescribed for such filing by ~~Rules 424(b~~the 1933 Act Regulations (to the extent so required). (b) On or after the Applicable Time and ~~430A under~~ prior to the ~~Act shall have been timely made;~~ Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued by and no proceedings for that purpose or pursuant to Section 8A of the ~~Commission or any state securities commission nor~~1933 Act shall have been instituted or, to the knowledge of the ~~Company~~Company or you, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be threatened by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) ~~Subsequent~~ On or after the Applicable Time and prior to the ~~execution~~ Closing Date, the rating assigned by ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s Ratings Services (or any of their successors) to any debt securities or preferred stock of the Company as of the date of this ~~Agreement,~~Agreement shall not have been lowered. (id) Since the respective most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus and up to the Closing Date, there shall not have ~~occurred~~ been any material adverse change in the condition of the Company and its subsidiaries, taken as a whole, financial or ~~development involving~~otherwise, except as reflected in or ~~which could be reasonably expected~~ contemplated by the Pricing Disclosure Package and the Prospectus, and since such dates and up to ~~involve~~the Closing Date, ~~a Material Adverse Effect, whether or~~ there shall not ~~arising from~~ have been any material transaction entered into by the Company other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which ~~on the Company,~~ in ~~any such case described in clause (i) or (ii) above,~~ your reasonable judgment is ~~in the reasonable and good faith opinion of the Representatives~~ so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Shares~~ Bonds on the terms and in the manner contemplated in by the ~~Registration Statement~~ Pricing Disclosure Package and the Prospectus. (ce) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives You shall have received ~~opinions~~ an opinion of ~~Foley & Lardner, special couns~~▇▇▇▇▇▇▇ ▇~~▇r the Company (as to the matters set forth below in subsections (i)~~. Beach, ~~(ii)~~Esq., ~~(vi), (viii), (ix) and (xiv)), and the Vice President,~~ Assistant General Counsel ~~and Secretary~~ of Duke Energy Business Services, LLC, the service company affiliate of the ~~Company (as to the matters set forth in subsections (iii)~~Company, ~~(iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and~~ dated the ~~First Closing Date or the Second~~ Closing Date~~, as the case may be~~, to the effect that: (i) The Company is a corporation duly organized and validly existing ~~as a corporation~~ in good standing under the laws of ~~Delaware~~the State of Ohio, with ~~full corporate~~ power and authority (corporate and other) to ~~own, lease and operate~~ own its properties and conduct its business as ~~presently conducted and as~~ described in the Pricing Disclosure Package and the Prospectus and ~~the Registration Statement;~~to enter into and perform its obligations under this Agreement. (ii) The ~~authorized capital stock~~ Company is duly qualified to do business in each jurisdiction in which the ownership or leasing of its property or the conduct of its business requires such qualification, except where the failure would not, singularly or in the aggregate, reasonably be expected to have a material adverse effect on the consolidated financial position, stockholder’s equity, results of operations, business or prospects of the Company ~~consists of 60,000,000 shares of Common Stock~~and its subsidiaries, ~~par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share~~taken as a whole, and ~~77,000,000 shares of preferred stock, $1.00 par value per share;~~to own and operate the properties in use in such business. (iii) ~~The issued and outstanding shares of capital stock~~ Each of the ~~Company immediately prior to the sale of the Shares hereunder have been~~ Company’s subsidiaries is duly ~~authorized~~ organized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing ~~as a corporation~~ in good standing ~~or active status~~ under the laws of ~~Tennessee, with full~~ the jurisdiction of its organization and has due corporate ~~power~~ and governmental authority to ~~own~~carry on the business in which it is engaged, ~~lease and operate its properties and to conduct its business as presently conducted and as described~~ except where the failure would not, singularly or in the ~~Prospectus and~~ aggregate, reasonably be expected to have a material adverse effect on the ~~Registration Statement; to such counsel's knowledge~~consolidated financial position, ~~the Company owns directly~~ stockholder’s equity, results of operations, business or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement prospects of the Company ~~enforceable against the Company in accordance with~~ and its ~~terms~~subsidiaries, ~~except that rights to indemnity or contribution hereunder may be limited by applicable law and except~~ taken as ~~to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally~~a whole, and ~~by equitable principles limiting~~ to own and operate the ~~right to specific performance or other equitable relief; and, to~~ properties in use in such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD);businesses. (xiv) The execution, delivery and performance of this ~~Agreement~~ Agreement, the Indenture and the Bonds and compliance by the Company with its obligations under this Agreement, the Indenture and the Bonds will ~~not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of~~not conflict with, or result in any charge or encumbrance upon any of the ~~breach, modification or termination~~ assets of the Company (other than pursuant to the Indenture) pursuant to the terms of, or constitute a default under, any agreement, ~~lease~~indenture or instrument known to such counsel, ~~franchise~~or result in a violation of the Articles or Regulations of the Company (as in effect on the Closing Date) or any order, ~~license~~rule or regulation (also as in effect on the Closing Date) of any court or governmental agency having jurisdiction over the Company, ~~indenture~~and the issuance of the Bonds in accordance with the Indenture and the sale of the Bonds in accordance with this Agreement, ~~permit~~do not and will not result in any violation by the Company of any of the terms or provisions of the Articles or Regulations, ~~mortgage~~or of the Indenture, ~~deed of trust, other evidence of indebtedness~~ or any mortgage or other agreement or instrument known to ~~which the Company or the Significant Subsidiary is a party or~~ such counsel by which the Company ~~or the Significant Subsidiary, or any of their respective owned or leased property~~ is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws);. (xiv) ~~To such counsel's knowledge~~The Indenture is in due and proper form, ~~there are no holders of Common Stock or other securities~~ has been duly and validly authorized by all necessary corporate action, has been duly executed and delivered by the Company, qualified under the 1939 Act, and, assuming due authorization, execution and delivery by the Trustee, the Indenture is a valid and binding instrument of the Company, enforceable in accordance with its terms, except as (i) the enforceability thereof may be limited by bankruptcy, insolvency, or ~~securities that~~ similar laws affecting creditors’ rights generally, and (ii) the rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. (vi) The issue of the Bonds by the Company in accordance with the terms of the Indenture has been duly authorized by all necessary corporate action; when duly executed by the Company, authenticated by the Trustee and delivered to and paid for by the Underwriters pursuant to this Agreement, the Bonds will constitute the legal, valid and binding obligations of the Company enforceable in accordance with their terms, secured by the lien of and entitled to the benefits provided by the Indenture, except as (i) the enforceability thereof may be limited by bankruptcy, insolvency, or similar laws affecting creditors’ rights generally, and (ii) the rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. (vii) The Company has good and marketable title to the properties, rights and assets described in and conveyed by the Indenture and not released by the Trustee from the lien thereof prior to the time of delivery of the Bonds, subject only to the lien of the Indenture and to “permitted liens” as defined in the Indenture; the description in the Indenture of such properties, rights and assets is adequate to constitute the Indenture a lien thereon; the Indenture complies with all applicable laws of the State of Ohio (wherein the properties subjected or intended to be subject to the lien of the Indenture are ~~convertible or exchangeable into Common Stock or other securities~~ located), including all applicable recording laws, and, subject only to the matters referred to above, constitutes a valid and direct first lien on such properties, rights and assets, which include substantially all of the Company’s tangible electric transmission and distribution utility property located in Ohio, together with the Company’s recorded easements and rights of way, franchises, licenses, permits, grants, immunities, privileges and rights that ~~have rights~~ are used or useful in the operation of such property; and all tangible electric transmission and distribution utility property located in Ohio acquired by the Company subsequent to the ~~registration~~ time of ~~such securities under~~ issuance of the ~~Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on~~ Bonds will be subject to the ~~New York Stock Exchange; (xiii) To such counsel's knowledge~~lien of the Indenture, ~~neither the Company nor the Significant Subsidiary is~~subject, ~~nor with the giving of notice or passage of time or both would be~~however, ~~in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company,"~~ to “permitted liens” as ~~such term is~~ defined in the ~~Investment~~ Indenture. (viii) The Indenture other than the Forty-first Supplemental Indenture has been duly filed for record in such manner and in such places as are required by law in order to give constructive notice of, and to establish, preserve and protect the lien of, the Indenture on all property of the Company ~~Act~~ of ~~1940~~every kind referred to in the Indenture as subject to the lien thereof. (ix) Except as referred to in the Pricing Disclosure Package and the Prospectus, ~~as amended. Such counsel shall also state that they have participated~~ there is no action, suit or proceeding, inquiry or investigation, at law or in ~~conferences with officers and other representatives of~~ equity or before or by any court, public board or body, pending or, to such counsel’s knowledge, threatened against or affecting the Company, ~~representatives~~ wherein an unfavorable decision, ruling or finding would (i) materially and adversely affect the condition (financial or otherwise), results of ~~auditors for~~ operations, business or properties of the Company or (ii) materially and ~~representatives~~ adversely affect the transactions contemplated by this Agreement, or which would adversely affect the validity or enforceability of the ~~Underwriters and their counsel during which~~ Indenture or the ~~content of~~ Bonds. The descriptions in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package and the Prospectus of any legal or governmental proceedings are accurate and ~~related matters were discussed and reviewed~~fairly present the information required to be shown, and ~~that, although~~ such counsel does not know of any litigation or any legal or governmental proceeding instituted or threatened against the Company or any of its properties that would be required to be disclosed in the Registration Statement, the Pricing Disclosure Package or the Prospectus and is not ~~verifying~~so disclosed. (x) An order of the PUCO relating to the issuance of the Bonds has been duly entered and, to such counsel’s knowledge, has not been modified or repealed in any respect and is ~~not passing upon~~ in full force and ~~does not assume~~ effect. The issuance and sale of the Bonds to the Underwriters are in conformity with the terms of such order. Except as may be required under the 1933 Act or the securities or Blue Sky laws of any ~~responsibility~~ jurisdiction, no further consent, approval, authorization or order of, or registration or filing with, any court or governmental or public agency, authority or body is required with respect to the Company for the ~~accuracy~~execution, ~~completeness~~ delivery and performance of this Agreement, the Indenture or ~~fairness~~ the Bonds, the issuance by the Company of the ~~statements contained or incorporated by reference into the Registration Statement~~ Bonds or the ~~Prospectus, on~~ consummation by the ~~basis~~ Company of the ~~information~~ transactions contemplated by this Agreement, the Indenture or the Bonds. In addition, such counsel shall state that ~~was developed in the course of the performance of~~ no facts have come to such ~~services, they~~ counsel’s attention that have ~~no reason~~ caused such counsel to believe that the Registration ~~Statement including any document incorporated by reference therein~~Statement, ~~on its effective date~~at the Applicable Time, contained ~~any~~ an untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, ~~or any amendment or supplement thereto including any document incorporated by reference therein,~~ as of its ~~issue~~ date and as of the Closing Date, contained or contains ~~any~~ an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (~~provided~~ except that in each case such counsel need not express an opinion as to the financial statements and other financial data included or incorporated by reference therein or excluded therefrom). Such counsel shall further state that, in addition, no facts have come to such counsel’s attention that have caused such counsel to believe that the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that such counsel need not express ~~no belief regarding~~ an opinion as to the financial statements and ~~related schedules and~~ other financial data included or ~~statistical data contained in the Registration Statement, any amendment thereto including any document~~ incorporated by reference ~~therein,~~ therein or ~~the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein~~excluded therefrom). To Such counsel shall expressly authorize the ~~extent that any of such opinions are stated~~ Underwriters to ~~be based upon~~ rely on such counsel~~'s knowledge or to be given "~~’s opinion dated the Closing Date delivered to the ~~knowledge of such counsel," such qualification shall signify that no information has come~~ Trustee pursuant to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in questionIndenture. In rendering ~~such~~ the foregoing opinion, such counsel ~~for~~ may state that such counsel does not express any opinion concerning any law other than the ~~Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers~~ laws of the ~~Company~~ State of Ohio and ~~any governmental officials, and copies~~ the Commonwealth of ~~all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date~~Kentucky. (ef) ~~The Representatives~~ You shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇~~sel and Secretary~~▇ ▇▇▇▇ LLC, of counsel to the Company, ~~in their respective capacities as such~~dated the Closing Date, to the effect that: (i) The ~~representations~~ Forty-first Supplemental Indenture has been duly authorized, executed and ~~warranties~~ delivered by the Company, and assuming due authorization, execution and delivery by the Trustee, the Indenture is a valid and binding instrument of the Company ~~set forth~~ enforceable in ~~Section 2 hereof are true and correct~~ accordance with its terms, except as of (i) the ~~date of this Agreement and as of the date of such certificate~~enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors’ rights generally, and (ii) the ~~Company has complied in all material respects with all~~ rights of acceleration and the ~~agreements and satisfied all the conditions to~~ availability of equitable remedies may be ~~performed or satisfied~~ limited by ~~it at or prior to the date~~ equitable principles of ~~such certificate;~~general applicability. (ii) The ~~Commission has not issued an order preventing or suspending~~ Bonds have been duly authorized, and when duly executed by the ~~use~~ Company, authenticated by the Trustee and delivered to and paid for by the Underwriters pursuant to this Agreement, will be valid and binding obligations of the ~~Prospectus~~ Company enforceable in accordance with their terms, except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or ~~any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending~~ similar laws affecting creditors’ rights generally and (ii) the ~~effectiveness~~ rights of acceleration and the ~~Registration Statement has been issued; and to the knowledge~~ availability of ~~the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws~~ equitable remedies may be limited by equitable principles of ~~any jurisdiction;~~general applicability. (iii) ~~Each~~ This Agreement has been duly authorized, executed and delivered by the Company. (iv) The statements made in the Preliminary Prospectus and the Prospectus under the captions “Description of the ~~respective signatories has examined~~ Mortgage Bonds” and “Certain U.S. Federal Income Tax Considerations for Non-U.S. Holders” in each case insofar as such statements constitute summaries of the ~~Registration Statement~~ legal matters, documents or proceedings referred to therein, accurately and fairly summarize the matters referred to therein in all material respects. (v) The Company is not, and solely after giving effect to the offering and sale of the Bonds and the application of the proceeds thereof as described in the Prospectus, will not be subject to registration and ~~any amendment~~ regulation as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended. In rendering the foregoing opinions, such counsel may state that it has relied as to certain factual matters on information obtained from public officials, officers and representatives of the Company and has assumed that the signatures on all documents examined by it are genuine, and that such counsel has not independently verified such factual matters or ~~supplement thereto~~assumptions. In addition, ~~including any~~ such counsel may assume matters governed by New York law. You shall also have received a statement of ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ LLC, dated the Closing Date, to the effect that: (1) no facts have come to such counsel’s attention that have caused such counsel to believe that the documents filed by the Company under the ~~Exchange~~ 1934 Act and ~~deemed to be~~ the 1934 Act Regulations that are incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus, were not, on their face, appropriately responsive in all material respects to the requirements of the 1934 Act and the 1934 Act Regulations (except that in each case such ~~documents contain all statements~~ counsel need not express any view as to the financial statements, schedules and other financial information included or incorporated by reference therein or excluded therefrom or the Form T-1); (2) the Registration Statement, at the Applicable Time, and the Prospectus, as of ~~material fact required~~ its date, appeared on their face to be ~~stated therein~~appropriately responsive in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations (except that in each case such counsel need not express any view as to the financial statements, schedules and ~~do not include any~~ other financial information included or incorporated by reference therein or excluded therefrom or the Form T-1); and (3) no facts have come to such counsel’s attention that have caused such counsel to believe that the Registration Statement, at the Applicable Time, contained an untrue statement of a material fact or ~~omit~~ omitted to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, ~~and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended~~ or ~~supplemented prospectus or in an amendment to the Registration Statement that has not been so set fo~~t

Appears in 1 contract

Sources: Underwriting Agreement (Duke Energy Ohio, Inc.)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Notes will be subject to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of the date hereof and as of each Closing Date~~Corporation herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Corporation made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Corporation of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Prospectus shall have been ~~declared effective~~ filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for filing by the ~~Commission not later than 5:30 p.m., Washington, D.C. time, on the date of this Agreement, or such later time~~ 1933 Act Regulations and ~~date as~~ in accordance herewith and each Permitted Free Writing Prospectus shall have been ~~consented to~~ filed by the ~~Representatives~~Corporation with the Commission within the applicable time periods prescribed for such filings by, ~~which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date~~ and ~~time requested~~ otherwise in ~~the acceleration request submitted on behalf~~ compliance with, Rule 433 of the ~~Representatives pursuant~~ 1933 Act Regulations. (b) On or after the Applicable Time and prior to ~~Rule 461 under~~ the ~~Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made;~~ Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued by and no proceedings for that purpose or pursuant to Section 8A of the ~~Commission or any state securities commission nor~~1933 Act shall have been instituted or, to the knowledge of the ~~Company~~Corporation or you, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be threatened by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) ~~Subsequent~~ On or after the Applicable Time and prior to the ~~execution~~ Closing Date, the rating assigned by ▇▇▇▇▇’▇ Investors Service, Inc., Standard & Poor’s Ratings Services or Fitch Ratings Inc. to any debt securities or preferred stock of the Corporation as of the date of this ~~Agreement,~~Agreement shall not have been lowered. (id) Since the respective most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus and up to the Closing Date, there shall not have ~~occurred~~ been any material adverse change in the condition of the Corporation, financial or ~~development involving~~otherwise, except as reflected in or ~~which could be reasonably expected~~ contemplated by the Prospectus, and, since such dates and up to ~~involve~~the Closing Date, ~~a Material Adverse Effect, whether or~~ there shall not ~~arising from~~ have been any material transaction entered into by the Corporation other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which ~~on the Company,~~ in ~~any such case described in clause (i) or (ii) above,~~ your reasonable judgment is ~~in the reasonable and good faith opinion of the Representatives~~ so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Shares~~ Notes on the terms and in the manner contemplated in by the ~~Registration Statement~~ Pricing Disclosure Package and the Prospectus. (ce) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives You shall have received ~~opinions~~ an opinion of ~~Foley & Lardner, special couns~~▇▇▇▇▇▇ ▇. ▇~~r the Company (as to the matters set forth below in subsections (i)~~▇▇▇▇ III, ~~(ii)~~Esq., ~~(vi), (viii), (ix) and (xiv)), and the Vice President,~~ Associate General Counsel ~~and Secretary~~ of the ~~Company (as to the matters set forth in subsections (iii)~~Corporation, ~~(iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and~~ dated the ~~First Closing Date or the Second~~ Closing Date~~, as the case may be~~, to the effect that: (i) ~~The Company~~ Each of the Principal Subsidiaries, other than Duke Energy Carolinas, LLC, has been duly incorporated and is validly existing ~~as a corporation~~ in good standing under the laws of ~~Delaware, with full~~ the jurisdiction of its incorporation and has the respective corporate power and authority and foreign qualifications necessary to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate own its properties and to conduct its business as ~~presently conducted~~ described in the Pricing Disclosure Package and the Prospectus. Duke Energy Carolinas, LLC has been duly organized and is validly existing and in good standing as a limited liability company under the laws of the State of North Carolina and has full limited liability company power and authority necessary to own its properties and to conduct its business as described in the ~~Prospectus~~ Pricing Disclosure Package and the ~~Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all~~ Prospectus. (ii) Each of the ~~issued~~ Corporation and ~~outstanding capital stock~~ the Principal Subsidiaries is duly qualified to do business in each jurisdiction in which the ownership or leasing of its property or the conduct of its business requires such qualification, except where the failure to so qualify, considering all such cases in the aggregate, does not have a material adverse effect on the business, properties, financial condition or results of operations of the ~~Significant Subsidiary;~~Corporation and its subsidiaries taken as a whole. (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (viiii) The Registration Statement ~~has become~~ became effective ~~under~~ upon filing with the Commission pursuant to Rule 462 of the 1933 Act Regulations, and, to the best of such counsel's ’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened by under the ~~Commission;~~ 1933 Act. (iv) The descriptions in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package and the Prospectus ~~and~~ of any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings ~~that~~ are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, accurate and ~~in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein,~~ fairly present the information ~~called for with respect~~ required to be shown, and such counsel does not know of any litigation or any legal ~~matters~~or governmental proceeding instituted or threatened against the Corporation or any of its Principal Subsidiaries or any of their respective properties that would be required to be disclosed in the Registration Statement, ~~documents~~ the Pricing Disclosure Package or the Prospectus and ~~proceedings;~~is not so disclosed. (ixv) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this This Agreement has been duly authorized, executed and delivered by ~~and on behalf of~~ the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD);Corporation. (xvi) The execution, delivery and performance by the Corporation of this Agreement by and the ~~Company will not: (A) violate any provisions~~ Indenture and the issue and sale of the ~~Articles of Incorporation~~ Notes will not violate or ~~Bylaws of the Company or the Significant Subsidiary; (B) violate~~ contravene any of the provisions ofof the Certificate of Incorporation or By-Laws of the Corporation or any statute or any order, rule or regulation of which such counsel is aware of any court or governmental agency or body having jurisdiction over the Corporation or any of its Principal Subsidiaries or any of their respective property, nor will such action conflict with or result in a breach or violation of any of the ~~breach, modification~~ terms or ~~termination~~ provisions of, or constitute a default ~~under,~~ under any ~~agreement, lease, franchise, license,~~ indenture~~, permit~~, mortgage, deed of trust, ~~other evidence of indebtedness~~ loan agreement or other agreement or instrument known to such counsel to which the ~~Company~~ Corporation or ~~the Significant Subsidiary~~ any of its Principal Subsidiaries is a party or by which any of them or their respective property is bound or to which any of its property or assets is subject which affects in a material way the ~~Company~~ Corporation’s ability to perform its obligations under this Agreement, the Indenture and the Notes. (vii) The Indenture has been duly authorized, executed and delivered by the Corporation and, assuming the due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument of the Corporation, enforceable against the Corporation in accordance with its terms. (viii) The Notes have been duly authorized, executed and issued by the Corporation and, when authenticated by the Trustee, in the manner provided in the Indenture and delivered against payment therefor, will constitute valid and legally binding obligations of the Corporation enforceable against the Corporation in accordance with their terms, and are entitled to the benefits afforded by the Indenture in accordance with the terms of the Indenture and the Notes. (ix) No consent, approval, authorization, order, registration or ~~the Significant Subsidiary~~qualification is required to authorize, or ~~any~~ for the Corporation to consummate the transactions contemplated by this Agreement, except for such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of ~~their respective owned~~ the Notes by the Underwriters and except as required in Condition 7.6 of the order of the North Carolina Utilities Commission dated June 29, 2012, in Docket No. E-7, sub 986, which consent has been obtained. Such counsel may state that his opinions in paragraphs (vii) and (viii) are subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or ~~leased property~~ affecting creditors’ rights generally and by general principles of equity (regardless of whether enforceability is ~~bound, and which is filed~~ considered in a proceeding in equity or at law). Such counsel shall state that nothing has come to his attention that has caused him to believe that each document incorporated by reference ~~as an exhibit to~~ in the Registration Statement~~; or (C) violate any statute~~, ~~ordinance~~the Pricing Disclosure Package and the Prospectus, ~~order~~when filed, ~~rule~~was not, ~~decree or regulation of any court~~on its face, ~~regulatory or governmental body~~appropriately responsive, ~~arbitrator~~in all material respects, ~~administrative agency or other instrumentality~~ to the requirements of the ~~United States having jurisdiction over~~ 1934 Act and the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the 1934 Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amendedRegulations. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information nothing has come to his attention that ~~was developed in the course of the performance of such services, they have no reason~~ has caused him to believe that (i) the Registration ~~Statement~~ Statement, including ~~any document incorporated by reference therein~~the Rule 430B Information, on as of its effective ~~date~~date and at each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations, contained any untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package at the Applicable Time contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) that the ~~Prospectus,~~ Prospectus or any amendment or supplement ~~thereto including any document incorporated by reference therein~~thereto, as of ~~its issue~~ the date it was filed with, or transmitted for filing to, the Commission and ~~as of~~ at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not ~~misleading (~~misleading. Such counsel may also state that, except as otherwise expressly provided ~~that~~ in such ~~counsel need express no belief regarding~~ opinion, he does not assume any responsibility for the ~~financial~~ accuracy, completeness or fairness of the statements ~~and related schedules and other financial or statistical data~~ contained in or incorporated by reference into the Registration Statement, the Pricing Disclosure Package or the Prospectus and does not express any ~~amendment thereto including any document~~ opinion or belief as to (i) the financial statements or other financial data contained or incorporated by reference ~~therein~~therein , or including XBRL interactive data, (ii) the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention statement of the ~~attorneys~~ eligibility and qualification of the Trustee included in ~~such firm who have been involved in the preparation or review of~~ the Registration Statement (the “Form T-1”) or (iii) the information in the Prospectus under the caption “Book-Entry System.” In rendering the foregoing opinion, such counsel may state that ~~would give them actual current knowledge~~ he does not express any opinion concerning any law other than the law of the ~~existence or absence~~ State of ~~such matter in question. In rendering such opinion~~North Carolina and may rely as to all matters of the laws of the States of South Carolina, Ohio, Indiana and Florida on appropriate counsel ~~for the Company may rely,~~ reasonably satisfactory to the ~~extent~~ Representatives, which may include the Corporation’s other “in-house” counsel). Such counsel ~~deems such reliance proper,~~ may also state that he has relied as to certain factual matters ~~of fact upon certificates of~~ on information obtained from public officials, officers of the ~~Company~~ Corporation and ~~any governmental officials, and copies of all such certificates shall~~ other sources believed by him to be ~~furnished to the Representatives and for the Underwriters on or before each Closing Date~~responsible. (ef) ~~The Representatives~~ You shall have received an opinion of ~~Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the~~ ▇▇▇▇▇▇▇▇~~ters~~, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ~~▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President,~~ & ▇▇▇▇▇▇~~▇ ▇▇▇▇sel and Secretary~~, of P.A., counsel to the ~~Company~~Corporation, ~~in their respective capacities as such~~dated the Closing Date, to the effect that: (i) ~~The representations~~ This Agreement has been duly authorized, executed and ~~warranties of~~ delivered by the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate;Corporation. (ii) The ~~Commission has not issued an order preventing or suspending~~ execution and delivery by the ~~use~~ Corporation of this Agreement and the consummation by the Corporation of the ~~Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending~~ transactions contemplated hereby, including the ~~effectiveness~~ issuance and sale of the ~~Registration Statement has been issued; and to~~ Notes, will not (i) conflict with the ~~knowledge~~ Corporation’s certificate of incorporation or Bylaws, (ii) constitute a violation of, or a breach of or default under, the terms of any of the ~~respective signatories, no proceedings for that purpose have been initiated~~ contracts set forth on Schedule D hereto or ~~are pending under the Act or under the Blue Sky Laws of any jurisdiction;~~ (iii) ~~Each~~ violate or conflict with, or result in any contravention of, any Applicable Law. “Applicable Law” means the General Corporation Law of the ~~respective signatories has examined~~ State of Delaware and those laws, rules and regulations of the ~~Registration Statement~~ State of New York and those federal laws, rules and regulations of the United States of America, in each case that, in such counsel’s experience, are normally applicable to transactions of the type contemplated by this Agreement (other than the United States federal securities laws, state securities or blue sky laws, antifraud laws and the ~~Prospectus,~~ rules and ~~any amendment or supplement thereto, including any documents filed under~~ regulations of the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set foFinancial Industry Regulatory Authority).

Appears in 1 contract

Sources: Underwriting Agreement (Duke Energy CORP)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Bonds will be subject to the accuracy of the representations and warranties on the part of the Company ~~herein set forth as of the date hereof and as of each Closing Date~~herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Company made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The ~~Registration Statement~~ Prospectus shall have been ~~declared effective~~ filed by the Company with the Commission ~~not later than 5:30 p.m., Washington, D.C. time, on~~ pursuant to Rule 424(b) within the ~~date of this Agreement, or such later~~ applicable time period prescribed for filing by the 1933 Act Regulations and ~~date as~~ in accordance herewith and each Permitted Free Writing Prospectus shall have been ~~consented to~~ filed by the ~~Representatives~~Company with the Commission within the applicable time periods prescribed for such filings by, ~~which consent shall be deemed~~ and otherwise in compliance with, Rule 433. (b) At or after the Applicable Time and prior to ~~have been given if~~ the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued by and no proceedings for that purpose or pursuant to Section 8A of the ~~Commission or any state securities commission nor~~1933 Act shall have been instituted or, to the knowledge of the ~~Company~~Company or you, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be threatened by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) ~~Subsequent~~ At or after the Applicable Time and prior to the ~~execution~~ Closing Date, the rating assigned by M▇▇▇▇’▇ Investors Service, Inc. or S&P Global Ratings (or any of their successors) to any debt securities or preferred stock of the Company as of the date of this ~~Agreement,~~Agreement shall not have been lowered. (id) Since the respective most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus and up to the Closing Date, there shall not have ~~occurred~~ been any material adverse change in the condition of the Company, financial or ~~development involving~~otherwise, except as reflected in or ~~which could be reasonably expected~~ contemplated by the Pricing Disclosure Package and the Prospectus, and, since such dates and up to ~~involve~~the Closing Date, ~~a Material Adverse Effect, whether or~~ there shall not ~~arising from~~ have been any material transaction entered into by the Company other than transactions contemplated by the Pricing Disclosure Package and the Prospectus and transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which ~~on the Company,~~ in ~~any such case described in clause (i) or (ii) above,~~ your reasonable judgment is ~~in the reasonable and good faith opinion of the Representatives~~ so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Shares~~ Bonds on the terms and in the manner contemplated in by the ~~Registration Statement~~ Pricing Disclosure Package and the Prospectus. (ce) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives You shall have received ~~opinions~~ an opinion of ~~Foley & Lardner, special couns~~R▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇r ▇, Esq., Deputy General Counsel of Duke Energy Business Services LLC, the ~~Company~~ service company subsidiary of Duke Energy Corporation (as who in such capacity provides legal services to the ~~matters set forth below in subsections~~ Company) (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed or other appropriate counsel reasonably satisfactory to the Representatives, ~~as the representatives of the Underwriters~~which may include Duke Energy Corporation’s other “in-house” counsel), ~~and~~ dated the ~~First Closing Date or the Second~~ Closing Date~~, as the case may be~~, to the effect that: (i) The Company has been duly organized and is validly existing as a ~~corporation~~ limited liability company in good standing under the laws of ~~Delaware~~the State of North Carolina, with ~~full corporate~~ power and authority (limited liability company and other) to ~~own, lease and operate~~ own its properties and conduct its business as ~~presently conducted and as~~ described in the Pricing Disclosure Package and the Prospectus and ~~the Registration Statement;~~to enter into and perform its obligations under this Agreement. (ii) The ~~authorized capital stock~~ Company is duly qualified to do business in each jurisdiction in which the ownership or leasing of its property or the conduct of its business requires such qualification, except where the failure to so qualify, considering all such cases in the aggregate, does not have a material adverse effect on the business, properties, financial condition or results of operations of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share;Company. (iii) The ~~issued and outstanding shares of capital stock~~ Registration Statement became effective upon filing with the Commission pursuant to Rule 462 of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted)1933 Act Regulations, and, to the best of such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's ’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened by under the ~~Commission;~~ 1933 Act. (iv) The descriptions in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package and the Prospectus ~~and~~ of any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings ~~that~~ are accurate and fairly present the information required to be ~~described~~ shown, and such counsel does not know of any litigation or any legal or governmental proceeding instituted or threatened against the Company or any of its properties that would be required to be disclosed in the Registration ~~Statement~~ Statement, the Pricing Disclosure Package or the Prospectus ~~that are~~ and is not so ~~described~~disclosed. (v) This Agreement has been duly authorized, ~~nor~~executed and delivered by the Company. (vi) The issuance and sale of the Bonds by the Company and the execution, to delivery and performance by the Company of this Agreement, the Mortgage and the Bonds will not contravene any of the provisions of the Articles of Organization or the Operating Agreement, the North Carolina Limited Liability Company Act or any statute or any order, rule or regulation of which such ~~counsel's knowledge~~counsel is aware of any court or governmental agency or body having jurisdiction over the Company or any of its property, ~~is there~~ nor will such action conflict with or result in a breach or violation of any ~~transaction~~of the terms or provisions of, ~~relationship~~or constitute a default under any indenture, ~~agreement~~mortgage, ~~contract~~ deed of trust, loan agreement or other ~~document of~~ agreement to which the Company is a ~~character required to be described in the Registration Statement~~ party or ~~the Prospectus,~~ by which it or ~~required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein,~~ its property is bound or to ~~be filed as an exhibit to~~ which any of its property or ~~incorporated by reference in the Registration Statement by the Act, which~~ assets is ~~not described,~~ subject or any instrument filed or incorporated by reference ~~required;~~as an exhibit to the Annual Report on Form 10-K of the Company for the fiscal year ended December 31, 2023 or any subsequent Quarterly Report on Form 10-Q of the Company or any Current Report on Form 8-K of the Company with an execution or filing date after December 31, 2023 or identified in Annex A to this Agreement, which affects in a material way the Company’s ability to perform its obligations under this Agreement, the Mortgage or the Bonds. (vii) The North Carolina Utilities Commission and the Public Service Commission of South Carolina have issued appropriate orders with respect to the issuance and sale of the Bonds in accordance with this Agreement, and, to the best of such counsel’s knowledge, such orders are still in effect and the issuance and sale of the Bonds to the Underwriters are in conformity with the terms of such orders; and no other authorization, approval or consent of any other governmental body (other than in connection or compliance with the provisions of the securities or Blue Sky laws of any jurisdiction) is legally required for the issuance and sale of the Bonds pursuant to this Agreement. (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement Mortgage has been duly authorized, executed and delivered by the Company and ~~on behalf~~ qualified under the 1939 Act, and, assuming the due authorization, execution and delivery thereof by the Trustees, constitutes a valid and legally binding instrument of the Company, ~~and is a legal, valid and binding agreement of the Company~~ enforceable against the Company in accordance with its terms, except ~~that rights to indemnity or contribution hereunder~~ (x) as the same may be limited by ~~applicable law~~ the laws of the States of North Carolina and South Carolina (in which States all physical property of the Company subject to the Mortgage is located except for certain interconnection lines) with respect to or affecting the remedies to enforce the security provided by the Mortgage, which laws do not make inadequate the remedies necessary for the realization of the benefits of such security, and (y) that the provisions of the Mortgage subjecting to the lien thereof the revenues and income from the mortgaged property may not be effective prior to the delivery or taking of possession of such revenues or income or of the mortgaged property by or on behalf of the Trustees. (ix) The Bonds have been duly authorized, executed and issued by the Company and, when the same have been authenticated by the Corporate Trustee as specified in the Mortgage and delivered against payment therefor, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms, and are entitled to the benefits and security afforded by the Mortgage in accordance with the terms of the Mortgage and the Bonds, except as set forth in paragraph (viii) above. (x) The Company has good title to ~~enforceability~~ all properties owned by it, subject only (a) to the lien of the Mortgage, (b) to Excepted Encumbrances as defined in the Mortgage, (c) to minor exceptions and defects which do not, in the aggregate, materially interfere with the use by the Company of such properties for the purposes for which they are held, materially detract from the value of said properties or in any material way impair the security afforded by the Mortgage, (d) in the case of the Company’s existing hydroelectric plants, to provisions of licenses issued by the Federal Power Commission or the Federal Energy Regulatory Commission and to the provisions of the Federal Power Act and (e) to certain rights-of-way over private property on which are located transmission and distribution lines formerly owned by the Tide Water Power Company (merged into the Company on February 29, 1952). (xi) The Mortgage complies as to form with all applicable laws of the states wherein the properties subjected or intended to be subjected to the lien of the Mortgage are located, including all applicable recording laws, and constitutes a valid, direct first mortgage lien on all properties and franchises purported to be owned by the Company, except such property as is specifically excepted from the lien thereof, subject only to the liens, charges and encumbrances stated in paragraph (x) above; all fixed electric properties hereafter acquired by the Company will, upon such acquisition, become subject to the lien of the Mortgage, subject, however, to liens or charges of the character permitted to exist by the Mortgage, and to liens, if any, existing or placed on such property at the time of the acquisition thereof by the Company, and the description of such property and franchises in the Mortgage is adequate to constitute a lien on such property and franchises of the Company except as aforesaid. (xii) The Original Mortgage and the supplemental indentures thereto, other than the Supplemental Indenture, have been duly recorded or filed for recordation in all such offices as are necessary to perfect and to preserve and protect the lien of the Mortgage upon the property intended to be subjected to the lien thereof, and upon the filing and recording of the Supplemental Indenture, no other recording or any periodic or other refiling or rerecording of the Mortgage is or will be required in order to perfect and to preserve and protect the lien of the Mortgage upon such property, and there are no mortgage, recording or other taxes required to be paid in connection with such filing and recording or in connection with the issuance of the Bonds other than customary filing and recording fees. (xiii) No consent, approval, authorization, order, registration or qualification of or with any federal, North Carolina or South Carolina governmental agency or body or, to such counsel’s knowledge, any federal or North Carolina court, which has not been obtained or taken and is not in full force and effect, is required to authorize or for the Company to consummate the transactions contemplated by this ~~Agreement~~ Agreement, except for such consents, approvals, authorizations, registrations or qualifications as may be ~~limited~~ required under state securities or Blue Sky laws in connection with the purchase and distribution of the Bonds by the Underwriters. Such counsel may state that such counsel’s opinions in paragraphs (viii) and (ix) above are subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or and other similar laws relating to or affecting mortgagees’ and other creditors' ’ rights generally, and by ~~equitable~~ general principles ~~limiting~~ of equity (regardless of whether enforceability is considered in a proceeding in equity or at law) and to an implied covenant of good faith and fair dealing. Such counsel may also state that such counsel’s opinion in paragraph (x) above is based upon the ~~right to specific performance or other equitable relief; and,~~ Company’s title insurance. Such counsel shall state that nothing has come to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument ’s attention that has caused such counsel to ~~which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or~~ believe that each document incorporated by reference ~~as an exhibit to~~ in the Registration Statement~~; or (C) violate any statute~~, ~~ordinance~~the Pricing Disclosure Package and the Prospectus, ~~order~~when filed, ~~rule~~was not, ~~decree or regulation of any court~~on its face, ~~regulatory or governmental body~~appropriately responsive, ~~arbitrator~~in all material respects, ~~administrative agency or other instrumentality~~ to the requirements of the ~~United States having jurisdiction over~~ 1934 Act and the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the 1934 Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amendedRegulations. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although nothing has come to such counsel’s attention that has caused such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that (i) the Registration ~~Statement including any document incorporated by reference therein~~Statement, ~~on its~~ as of the effective ~~date~~date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations, contained any untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Pricing Disclosure Package at the Applicable Time contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (iii) that the ~~Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein,~~ Prospectus as of its ~~issue~~ date ~~and as of~~ or at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading (~~misleading. Such counsel may also state that, except as otherwise expressly provided ~~that~~ in such opinion, such counsel ~~need express no belief regarding~~ does not assume any responsibility for the ~~financial~~ accuracy, completeness or fairness of the statements ~~and related schedules and other financial or statistical data~~ contained in or incorporated by reference into the Registration Statement, the Pricing Disclosure Package or the Prospectus and does not express any ~~amendment thereto including any document~~ opinion or belief as to (i) the financial statements or other financial and accounting data contained or incorporated by reference therein, or excluded therefrom, including XBRL interactive data, (ii) the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention statements of the ~~attorneys~~ eligibility and qualification of the Trustees included in ~~such firm who have been involved in the preparation or review of~~ the Registration Statement (the “Forms T-1 and T-2”) or (iii) the information in the Pricing Disclosure Package and the Prospectus under the caption “Book-Entry System.” In rendering the foregoing opinion, such counsel may state that ~~would give them actual current knowledge~~ such counsel does not express any opinion concerning any law other than the law of the ~~existence or absence~~ State of ~~such matter in question. In rendering such opinion, counsel for the Company may rely~~North Carolina or, to the extent ~~counsel deems such reliance proper~~set forth in the foregoing opinions, the federal securities laws and the law of the State of South Carolina and may rely as to all matters of ~~fact upon certificates~~ the law of the State of South Carolina on the opinion of K▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇., Deputy General Counsel of Duke Energy Business Services LLC, the service company subsidiary of Duke Energy Corporation (who in such capacity provides legal services to the Company), or other appropriate counsel reasonably satisfactory to the Representatives, which may include Duke Energy Corporation’s other “in-house” counsel. Such counsel may also state that such counsel has relied as to certain factual matters on information obtained from public officials, officers of the Company and ~~any governmental officials, and copies of all~~ other sources believed by such ~~certificates shall~~ counsel to be ~~furnished to the Representatives and for the Underwriters on or before each Closing Date~~reliable. (ef) ~~The Representatives~~ You shall have received an opinion of ~~Michael Best & Friedrich LLP, ▇▇~~H▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇A▇▇▇▇▇▇ ▇▇▇▇~~sel and Secretary~~▇ LLP, of counsel to the Company, ~~in their respective capacities as such~~dated the Closing Date, to the effect that: (i) The ~~representations~~ statements set forth (i) under the caption “Description of First Mortgage Bonds” in the Base Prospectus and ~~warranties~~ (ii) under the caption “Description of the ~~Company set forth~~ Mortgage Bonds” in ~~Section 2 hereof are true~~ the Pricing Disclosure Package and ~~correct~~ the Prospectus, insofar as such statements purport to summarize certain provisions of the ~~date of this Agreement and as of the date of such certificate,~~ Mortgage and the ~~Company has complied~~ Bonds, fairly summarize such provisions in all material ~~respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate;~~respects. (ii) ~~The Commission~~ No Governmental Approval (as defined below), which has not ~~issued an order preventing~~ been obtained or ~~suspending~~ taken and is not in full force and effect, is required to authorize, or is required for, the ~~use~~ execution or delivery of this Agreement by the Company or the consummation by the Company of the ~~Prospectus~~ transactions contemplated hereby, except for such consents, authorizations, orders, registrations or ~~any Preliminary Prospectus~~ qualifications as may be required under state securities or ~~any amendment or supplement thereto; no stop order suspending~~ Blue Sky laws in connection with the ~~effectiveness~~ purchase and distribution of the ~~Registration Statement has been issued; and to~~ Bonds by the ~~knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction;~~Underwriters. (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set foThe Company is

Appears in 1 contract

Sources: Underwriting Agreement (Duke Energy Progress, Llc.)

Conditions of the Obligations of the Underwriters. The ------------------------------------------------- obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Class A Certificates will be subject to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of the date hereof and as of each Closing Date~~Seller herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Seller made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Seller of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent : (a) ~~The Registration Statement~~ At the time this Agreement is executed and delivered by the Seller and at the Closing Date, Deloitte & Touche LLP shall have ~~been declared effective by~~ furnished to the ~~Commission~~ Representative letters dated respectively as of the date of this Agreement and as of the Closing Date substantially in the forms of the drafts to which the Representative previously agreed. (b) If the Effective Time is not prior to the execution and delivery of this Agreement, the Effective Time shall have occurred not later than ~~5:30~~ 10:00 p.m., ~~Washington, D.C.~~ New York time, on the date of this ~~Agreement,~~ Agreement or such later ~~time and~~ date as shall have been consented to by the ~~Representatives~~Representative. If the Effective Time is prior to the execution and delivery of this Agreement, ~~which consent shall be deemed to have been given if~~ the ~~Registration Statement~~ Prospectus shall have been ~~declared effective on or before~~ filed with the ~~date~~ Commission in accordance with the Rules and ~~time requested in~~ Regulations and Section 5(a) of this Agreement. Prior to the ~~acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made;~~ Closing Date, no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Seller, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faith. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the ProspectusCommission. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives You shall have received ~~opinions of Foley & Lardner~~an officer's certificate, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the ~~First Closing Date or the Second~~ Closing Date, as signed by the ~~case may be~~Chairman of the Board, the President or any Vice President and by a principal financial or accounting officer of the Seller representing and warranting that, to the ~~effect that: (i) The Company is validly existing~~ best of such officers' knowledge after reasonable investigation, as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the ~~Company consists of 60,000,000 shares of Common Stock~~Closing Date, ~~par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share,~~ the representations and ~~77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock~~ warranties of the ~~Company immediately~~ Seller in this Agreement are true and correct in all material respects, that the Seller has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform Closing Date in all material ~~respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent~~respects, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or or, to the best of their knowledge, are ~~threatened~~ contemplated by the Commission; . (d) Subsequent to the ~~Registration Statement~~ execution and delivery of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the ~~Prospectus~~ business or properties of the Seller, Nissan Motor Co. Ltd., Nissan Motor Corporation in U.S.A. ("NMC") or the Servicer which, in the judgment of the Representative, materially impairs the investment quality of the Class A Certificates or makes it impractical or inadvisable to proceed with completion of the sale of and ~~any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except~~ payment for the ~~financial statements~~ Class A Certificates; (ii) any downgrading in the rating of any debt securities of NMC or any of its direct or indirect subsidiaries by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any such debt securities (other than an announcement with positive implications of a possible upgrading, and ~~schedules and~~ no implication of a possible downgrading, of such rating); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange; (iv) any banking moratorium declared by Federal or New York authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other ~~statistical~~ substantial national or ~~financial data included therein~~international calamity or emergency if, ~~as to which such counsel need express no opinion) comply as to form~~ in ~~all material respects with~~ the ~~requirements~~ judgment of the ~~Act;~~ Representative, the ~~conditions~~ effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for ~~use of Form S-3, set forth in~~ the ~~General Instructions thereto, have been satisfied;~~Class A Certificates. (~~vii~~e) To ▇▇▇ ▇▇▇▇▇, Esq., General Counsel of the Seller, or other counsel satisfactory to the Representative in its reasonable judgment, shall have furnished to the Representative such counsel's ~~knowledge~~written opinion, ~~there are no pending or threatened legal or governmental proceedings that are required to be described~~ dated the Closing Date, in substantially the ~~Registration Statement or~~ form set forth below, with such changes therein as counsel for the ~~Prospectus that are not so described, nor, to such counsel's knowledge,~~ Underwriters shall reasonably agree: (i) The Seller has been duly incorporated and is ~~there any transaction, relationship, agreement, contract or other document of~~ validly existing as a ~~character required to be described~~ corporation in ~~the Registration Statement or the Prospectus, or required to be filed~~ good standing under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description laws of the ~~Common Stock contained in the Company's Registration Statement on Form 8-A, filed~~ State of Delaware with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to ~~enter into~~ own its properties and ~~perform this Agreement;~~ conduct its business as described in the ~~performance~~ Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or the ownership of its property requires such qualification. (ii) The Servicer has been duly incorporated and is validly existing as a corporation in good standing under the laws of the ~~Company's obligations hereunder~~ State of California with full corporate power and authority to own its properties and conduct its business as described in the Prospectus, and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or the ownership of its property requires such qualification. (iii) The Pooling and Servicing Agreement and the ~~consummation of the transactions described herein~~ Purchase Agreement have been duly ~~authorized~~ authorized, executed and delivered by the ~~Company~~ Servicer. (iv) The indemnification agreement dated the date hereof (the "Indemnification Agreement") between the Servicer and Representative, on behalf of the several Underwriters, has been duly authorized, executed and delivered by ~~all necessary corporate action~~ the Servicer; and this Agreement has been duly authorized, executed and delivered by the Seller. (v) The Pooling and ~~on behalf of~~ Servicing Agreement and the ~~Company~~Purchase Agreement have been duly authorized, executed and ~~is a legal~~delivered by the Seller. (vi) The Yield Supplement Agreement has been duly authorized, ~~valid~~ executed and ~~binding agreement of~~ delivered by the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, Seller and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution Nissan Motor Acceptance Corporation (in its own capacity and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASDnot in its capacity as Servicer);. (xvii) The execution, delivery and performance of this Agreement by the ~~Company~~ Seller, the Pooling and Servicing Agreement and the Purchase Agreement by the Seller and the Servicer and the Indemnification Agreement by the Servicer will ~~not: (A) violate any provisions~~ not conflict with or result in a breach of ~~the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate~~ any of the terms or provisions ~~of, or result in the breach, modification or termination~~ of, or constitute a default under, or result in the creation or imposition of any ~~agreement~~lien, ~~lease~~charge or encumbrance upon any of the properties or assets of the Seller or the Servicer, ~~franchise~~pursuant to the terms of the Certificate or Articles of Incorporation or the By-Laws of the Seller or the Servicer, ~~license~~any statute, ~~indenture~~any rule, ~~permit, mortgage, deed~~ regulation or order of ~~trust, other evidence~~ any governmental agency or body or any court having jurisdiction over the Seller or the Servicer or any of ~~indebtedness~~ their respective properties or ~~other~~ any material agreement or instrument to which the ~~Company~~ Seller or the ~~Significant Subsidiary~~ Servicer is a party or by which either the ~~Company~~ Seller or the ~~Significant Subsidiary,~~ Servicer or any of their respective ~~owned or leased property~~ properties is bound. (viii) No authorization, ~~and which is filed~~ approval or ~~incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation~~ consent of any ~~court, regulatory~~ court or governmental ~~body, arbitrator, administrative~~ agency or ~~other instrumentality~~ authority is necessary in connection with the execution, delivery and performance by the Seller of this Agreement, the Pooling and Servicing Agreement or the Purchase Agreement or by the Servicer of the ~~United States having jurisdiction over~~ Indemnification Agreement, the ~~Company~~ Pooling and Servicing Agreement or the ~~Significant Subsidiary (assuming compliance with all applicable federal~~ Purchase Agreement, except such as may be required under the Act or the Rules and Regulations and state securities laws);, and except for such authorizations, approvals or consents (specified in such opinion) as are in full force and effect as of the Effective Date and the Closing Date. (xiix) To The Class A Certificates have been duly authorized and, when executed and authenticated by the Trustee in accordance with the Pooling and Servicing Agreement and delivered and paid for pursuant to this Agreement, the Class A Certificates will constitute valid and binding obligations of the Trust entitled to the benefits provided by the Pooling and Servicing Agreement. (x) Nothing has come to such counsel's ~~knowledge, there are no holders of Common Stock or other securities~~ attention that would cause it to believe that as of the ~~Company, or securities that are convertible or exchangeable into Common Stock or other securities of~~ Effective Date and at the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of Closing Date the Registration Statement and the Prospectus (other than the financial statements and ~~related matters were discussed and reviewed~~the other accounting information contained therein or omitted therefrom, ~~and that, although~~ as to which such counsel ~~is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements~~ need express no belief) contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains contain any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements ~~therein~~ therein, in the light of the circumstances under which they were made, not misleading, or that the descriptions therein of statutes and ~~since~~ governmental proceedings and contracts and other documents are inaccurate and do not fairly present the ~~date on which the Registration Statement was initially filed, no event has occurred that was~~ information required to be ~~set forth in~~ shown therein. (xi) Such counsel does not know of any contract or other document of a character required to be filed as an ~~amended or supplemented prospectus or in an amendment~~ exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which is not filed or described as required. (xii) There are no legal or governmental proceedings pending to which the Seller or the Servicer is a party or of which any property of the Seller or the Servicer is the subject, and no such proceedings are known by such counsel to be threatened or contemplated by governmental authorities or threatened by others, (A) that are required to be disclosed in the Registration Statement or (B)(1) asserting the invalidity of all or part this Agreement, the Indemnification Agreement, the Purchase Agreement or the Pooling and Servicing Agreement, (2) seeking to prevent the issuance of the Certificates, (3) that could materially and adversely affect the Seller's obligations under this Agreement, the Purchase Agreement or the Pooling and Servicing Agreement or the Servicer's obligations under the Indemnification Agreement, the Purchase Agreement or the Pooling and Servicing Agreement, or (4) seeking to affect adversely the federal or state income tax attributes of the Class A Certificates. (xiii) The Servicer has ~~not been so set fo~~full power and authority to sell and assign the property to be sold and assigned to the Seller pursuant to the Purchase Agreement and has duly authorized such sale and assignment to the Seller by all necessary corporate action. (xiv) The Seller has full power and authority to sell and assign the property to be sold and assigned to and deposited with the Trustee as part of the Trust and has duly authorized such sale and assignment to the Trustee by all necessary corporate action.

Appears in 1 contract

Sources: Underwriting Agreement (Nissan Auto Receivables Corp /De)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement~~ to purchase and pay for the Firm Shares as provided herein on the First Closing Date and, with respect to the Option Shares, the Second Closing Date, shall be subject to the accuracy of the representations and warranties on the part of the Company ~~herein~~ and the Selling Stockholders set forth in Section 1(A) and 1(B) hereof as of the date hereof and as of ~~each~~ the First Closing ~~Date~~Date as though then made and, with respect to the Option Shares, as of the Second Closing Date as though then made, to the ~~accuracy of the statements of the Company's officers made pursuant to the provisions hereof, to the~~ timely performance ~~in all material respects~~ by the Company and the Selling Stockholders of ~~its~~ their respective covenants and other obligations hereunder, and to each of the following additional conditions~~, unless waived in writing by the Representatives~~: (a) COMPLIANCE WITH REGISTRATION REQUIREMENTS; NO STOP ORDER; NO OBJECTION FROM THE NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC. The Registration Statement shall have ~~been declared~~ become effective by prior to the ~~Commission not later than 5:30 p.m., Washington, D.C. time, on the date~~ execution of this Agreement, or at such later ~~time and~~ date as shall ~~have been~~ be consented to in writing by ~~the Representatives, which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date~~ you; and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; no stop order suspending the effectiveness ~~of the Registration Statement~~ thereof shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been initiated or, to the knowledge of the Company, ~~shall~~ or any ~~proceedings for that purpose have been instituted or threatened;~~ Underwriter, threatened by the Commission, and any request of the Commission ~~or any state securities commission~~ for ~~inclusion of~~ additional information (to be included in the Registration ~~Statement,~~ Statement or the Prospectus or any Incorporated Document or otherwise, ) shall have been complied with to the ~~reasonable~~ satisfaction of the Representatives acting in good faith. (b) Subsequent to the execution of this Agreement, (i) there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) or (ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, ~~is material or omits to state a fact that~~Sidley & Austin ("Underwriters' Counsel"); and the National Association of Securities Dealers, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (d) The Representatives Inc. shall have ~~received opinions of Foley & Lardner, special couns▇▇ ▇▇r the Company (as~~ raised no objection to the ~~matters set forth below in subsections (i), (ii), (vi), (viii), (ix)~~ fairness and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of Delaware, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have been duly authorized and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; to such counsel's knowledge, the Company owns directly or indirectly and beneficially all of the issued and outstanding capital stock of the Significant Subsidiary; (v) The certificates for the Shares to be delivered hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares represented thereby will be duly authorized and validly issued, fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted); (vi) The Registration Statement has become effective under the Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance reasonableness of the underwriting ~~arrangements with the NASD); (x) The execution, delivery~~ terms and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that the Registration Statement including any document incorporated by reference therein, on its effective date, contained any untrue statement of material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Datearrangements. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the sale of the Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters. (f) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set fo

Appears in 1 contract

Sources: Underwriting Agreement (Globespan Inc/De)

Conditions of the Obligations of the Underwriters. The obligations of the ~~several~~ Underwriters ~~under this Agreement shall~~ to purchase and pay for the Class A Notes will be subject to the accuracy of the representations and warranties on the part of the ~~Company herein set forth as of the date hereof~~ Seller and ~~as of each Closing Date~~CFSC herein, to the accuracy of the statements of officers of the ~~Company's officers~~ Seller and CFSC made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the ~~Company~~ Seller of its obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The Registration Statement shall ~~have been declared~~ be effective by at the ~~Commission not later than 5:30 p.m.~~Execution Time, ~~Washington~~and prior to the Closing Date, D.C. time, on the date of this Agreement, or such later time and date as shall have been consented to by the Representatives, which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Company~~Seller or the Representatives, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or by any authority administering any state securities ~~commission for inclusion of additional information in the Registration Statement,~~ or ~~otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faith~~blue sky law. (b) The Prospectus and any supplements thereto shall have been filed (if required) with the Commission in accordance with the Rules and Regulations and Section 5(a) hereof. (c) On or prior to the date of this Agreement and on or prior to the Closing Date, the Representatives shall have received a letter or letters, dated as of the date of this Agreement and as of the Closing Date, respectively, of PricewaterhouseCoopers LLP, independent public accountants, substantially in the form of the drafts to which the Representatives have previously agreed and otherwise in form and substance satisfactory to the Representatives and their counsel. (d) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred (i) any ~~change or development involving~~change, or ~~which could be reasonably expected to involve~~any development involving a prospective change, ~~a Material Adverse Effect~~in or affecting particularly the business or properties of the Trust, ~~whether~~ the Seller or ~~not arising from transactions~~ the Servicer which, in the ~~ordinary course~~ judgment of ~~business~~the Underwriters, ~~and~~ materially impairs the investment quality of the Notes or makes it impractical or inadvisable to market the Notes; (ii) any suspension or limitation of trading in securities generally on the ~~Company shall not have sustained~~ New York Stock Exchange or the over-the-counter market, or any ~~loss~~ setting of minimum prices for trading on such exchange, or ~~interference from~~ a material disruption in commercial banking or securities settlement or clearance services in the United States or with respect to Clearstream or Euroclear systems in Europe; (iii) any ~~labor dispute~~suspension of trading of any securities of Caterpillar or CFSC on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by Federal, ~~strike~~Delaware or New York authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, ~~fire~~any declaration of war by Congress, ~~flood~~or any other substantial national or international calamity or emergency if, ~~windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect~~in the judgment of the Underwriters, the effect of ~~which on the Company, in~~ any such ~~case described in clause (i)~~ outbreak, escalation, declaration, calamity or ~~(ii) above, is in the reasonable and good faith opinion of the Representatives so material and adverse as to make~~ emergency makes it ~~impracticable~~ impractical or inadvisable to proceed with the ~~public offering or~~ offering, sale of and payment for the ~~delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus~~Notes. (c) The Representatives shall not have advised the Company that the Registration Statement or Prospectus contains an untrue statement of fact that, in the reasonable and good faith opinion of the Representatives or counsel for the Underwriters, is material or omits to state a fact that, in the reasonable and good faith opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading. (de) The Representatives shall have received opinions of ~~Foley~~ M▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of CFSC, O▇▇▇▇▇, H▇▇▇▇▇▇▇▇▇ & ~~Lardner, special couns~~S▇▇▇▇▇▇▇▇ LLP and W▇▇▇▇▇ L▇▇▇▇▇▇ ▇▇r ▇▇▇▇ & D▇▇▇▇, PLLC, counsel to CFSC, the ~~Company (as~~ Seller and the Trust and such other counsel acceptable to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) Underwriters addressed to the Representatives, ~~as the representatives of the Underwriters, and~~ dated the ~~First~~ Closing Date or and satisfactory in form and substance to the ~~Second Closing Date~~Representatives and their counsel, ~~as the case may be,~~ substantially to the effect that: (i) ~~The Company~~ CFSC has been duly incorporated and is validly existing as a corporation in good standing under the laws of ~~Delaware,~~ the State of Delaware with full corporate power and authority to ~~own, lease and operate~~ own its properties and conduct its ~~business~~ business, as presently owned and conducted by it, and ~~as described in~~ to enter into and perform its obligations under the ~~Prospectus~~ Underwriting Agreements, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the ~~Registration Statement;~~Custodial Agreement and had at all times, and now has, the power, authority and legal right to acquire, own and sell the Receivables. (ii) The authorized capital stock of the Company consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share, and 77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock of the Company immediately prior to the sale of the Shares hereunder have Seller has been duly ~~authorized~~ incorporated and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing ~~or active status~~ under the laws of ~~Tennessee,~~ the State of Nevada with full corporate power and authority to ~~own, lease and operate~~ own its properties and to conduct its ~~business~~ business, as presently owned and conducted by it, and ~~as described in~~ to enter into and perform its obligations under the ~~Prospectus~~ Underwriting Agreements, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, the Administration Agreement and the ~~Registration Statement; to such counsel's knowledge~~Custodial Agreement and had at all times, and now has, the ~~Company owns directly~~ power, authority and legal right to acquire, own and sell the Receivables. (iii) CFSC is duly qualified to do business and is in good standing, and has obtained all necessary licenses and approvals in each jurisdiction in which failure to qualify or ~~indirectly~~ to obtain such license or approval would render any Receivable unenforceable by the Seller, the Owner Trustee or the Indenture Trustee. (iv) The Seller is duly qualified to do business and ~~beneficially~~ is in good standing, and has obtained all of necessary licenses and approvals in each jurisdiction in which failure to qualify or to obtain such license or approval would have a material adverse effect on the ~~issued and outstanding capital stock of the Significant Subsidiary;~~Receivables as a whole. (v) ~~The certificates for~~ When the ~~Shares to be~~ Certificates have been duly executed, authenticated and delivered ~~hereunder conform in all material respects to the requirements of the Delaware General Corporation Law and the rules and regulations of the New York Stock Exchange; and when duly countersigned~~ by the ~~Company's transfer agent,~~ Owner Trustee in accordance with the Trust Agreement and delivered to the ~~Representatives or upon~~ Seller pursuant to the ~~order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of this~~ Sale and Servicing Agreement, the ~~Shares represented thereby~~ Certificates will be ~~duly authorized and validly~~ legally issued, fully paid and nonassessable ~~(except,~~ obligations of the Trust and will be entitled to the ~~extent applicable, as otherwise provided in Section 180.0622(2)(b)~~ benefits of the ~~Wisconsin Business Corporation Law, as judicially interpreted);~~Trust Agreement. (vi) ~~The Registration Statement has become effective under~~ When the ~~Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose~~ Notes have been instituted or are threatened by the Commission; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical or financial data included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by ~~and~~ the Owner Trustee on behalf of the ~~Company~~Trust, authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to the Underwriting Agreements, the Notes will be duly issued, will constitute legal, valid and binding obligations of the Trust enforceable against the Trust in accordance with their terms and will be entitled to the benefits and security afforded by the Indenture, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (vii) Each of the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, the Administration Agreement and the Custodial Agreement has been duly authorized, executed and delivered by the Seller, and is a legal, valid and binding ~~agreement~~ obligation of the ~~Company~~ Seller enforceable against the ~~Company~~ Seller in accordance with its terms, except ~~that rights to indemnity or contribution hereunder~~ (x) the enforceability thereof may be ~~limited by applicable law and except as~~ subject to ~~enforceability of this Agreement may be limited by~~ bankruptcy, insolvency, reorganization, moratorium or other similar laws ~~affecting~~ now or hereafter in effect relating to creditors' ’ rights ~~generally,~~ and ~~by equitable principles limiting~~ (y) the ~~right to~~ remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. (viii) The Underwriting Agreements have been duly authorized, executed and delivered by each of the Seller and CFSC. (ix) Each of the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement and the Custodial Agreement has been duly authorized, executed and delivered by CFSC and is a legal, valid and binding obligation of CFSC enforceable against CFSC in accordance with its terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, conservatorship, moratorium or other similar laws now or hereafter in effect relating to creditors’ rights and (y) the remedy of specific performance and injunctive and other forms of equitable ~~relief; and,~~ relief may be subject to ~~such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality~~ equitable defenses and to the discretion of the ~~United States having jurisdiction~~ court before which any proceeding therefor may be brought. (x) Neither the sale, transfer, assignment, set over and conveyance of the ~~Company~~Receivables from CFSC to the Seller, ~~is required for~~ nor the sale, transfer, assignment, set over and conveyance of the Receivables from the Seller to the Trust, nor the grant of a security interest in the Trust Estate by the Trust to the Indenture Trustee, nor the assignment by the Seller of its right, title and interest in the Purchase Agreement to the Trust, nor the grant of the security interest in the Collateral to the Indenture Trustee pursuant to the Indenture, nor the execution and delivery of ~~this~~ the Underwriting Agreements, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement, the Administration Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Custodial Agreement by the ~~Company will not: (A) violate any provisions~~ Seller, nor the execution of the ~~Articles~~ Underwriting Agreements, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement or the Custodial Agreement by CFSC, nor the consummation of ~~Incorporation~~ any transactions contemplated in the Underwriting Agreements, the Purchase Agreement, the Trust Agreement, the Indenture, the Administration Agreement, the Sale and Servicing Agreement or ~~Bylaws~~ the Custodial Agreement (such agreements, excluding the Underwriting Agreements, being for purposes of this clause (e) and elsewhere herein, as applicable, collectively, the “Basic Documents”), nor the fulfillment of the ~~Company~~ terms thereof by CFSC, the Seller or the ~~Significant Subsidiary;~~ Trust, as the case may be, will (B1) ~~violate any of the provisions of~~conflict with, or result in ~~the~~ a breach, ~~modification~~ violation or ~~termination~~ acceleration of, or constitute a default under, any ~~agreement~~term or provision of the certificate of incorporation or bylaws of CFSC or the Seller or, ~~lease~~to the best of such counsel’s knowledge after due inquiry, ~~franchise, license, indenture, permit, mortgage, deed~~ of ~~trust, other evidence of indebtedness~~ any indenture or other agreement or instrument to which ~~the Company~~ CFSC or the ~~Significant Subsidiary~~ Seller is a party or by which ~~the Company or the Significant Subsidiary, or any~~ either of ~~their respective owned or leased property~~ them is bound, ~~and which is filed or incorporated by reference as an exhibit to the Registration Statement;~~ or (C2) ~~violate~~ result in a violation of or contravene the terms of any statute, ~~ordinance, order, rule, decree~~ order or regulation applicable to CFSC or the Seller of any court, regulatory ~~or governmental~~ body~~, arbitrator~~, administrative agency or ~~other instrumentality of the United States~~ governmental body having jurisdiction over ~~the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws);~~either of them. (xi) To There are no actions, proceedings or investigations pending or, to the best of such counsel's ’s knowledge, ~~there are no holders of Common Stock~~ threatened before any court, administrative agency, or other ~~securities~~ tribunal (1) asserting the invalidity of the ~~Company~~Trust or any of the Basic Documents, (2) seeking to prevent the consummation of any of the transactions contemplated by any of the Basic Documents or the execution and delivery thereof, or ~~securities~~ (3) that ~~are convertible~~ could reasonably be expected to materially and adversely affect the performance (A) by CFSC of its obligations under, or ~~exchangeable into Common Stock~~ the validity or ~~other securities~~ enforceability of, the Underwriting Agreements, the Administration Agreement, the Purchase Agreement, the Sale and Servicing Agreement or the Custodial Agreement, (B) by the Seller of its obligations under, or the ~~Company~~validity or enforceability of, ~~that have rights to~~ the ~~registration~~ Underwriting Agreements, the Purchase Agreement, the Trust Agreement, the Sale and Servicing Agreement or the Custodial Agreement, or (C) by the Servicer of ~~such securities under~~ its obligations under, or the ~~Act~~ validity or ~~any Blue Sky Laws;~~enforceability of, the Sale and Servicing Agreement. (xii) ~~The Shares are authorized for trading~~ To the best knowledge of such counsel, no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any agreement to which CFSC or the Seller is a party or by which either of them is bound, which default is or would have a material adverse effect on the ~~New York Stock Exchange;~~financial condition, earnings, business or properties of CFSC and its subsidiaries, taken as a whole. (xiii) ~~To such counsel's knowledge~~The Assignment (as defined in the Purchase Agreement) dated as of the Closing Date from CFSC to the Seller has been duly authorized, ~~neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and~~executed and delivered by CFSC. (xiv) ~~The Company is not an "investment company," as such term is defined~~ Should CFSC become the debtor in a case under the Bankruptcy Code, if the matter were properly briefed and presented to a court, the court should hold that (1) the transfer of the Receivables by CFSC to the Seller in the ~~Investment Company Act~~ manner set forth in the Purchase Agreement would constitute an absolute sale of ~~1940~~the Receivables, ~~as amended.~~ rather than a borrowing by CFSC secured by the Receivables, and thus (2) the Seller’s rights to the Receivables would not be impaired by the operation of Section 362(a) of the Bankruptcy Code. (xv) Should CFSC become the debtor in a case under the Bankruptcy Code, and the Seller would not otherwise properly be a debtor in a case under the Bankruptcy Code, and if the matter were properly briefed and presented to a court exercising bankruptcy jurisdiction, the court, exercising reasonable judgment after full consideration of all relevant factors, would not order, over the objection of the Certificateholders or the Noteholders, the substantive consolidation of the assets and liabilities of the Seller with those of CFSC based on any legal theories currently subscribed to by federal courts exercising bankruptcy jurisdiction. (xvi) Such counsel ~~shall also state that they have participated in conferences~~ is familiar with ~~officers and other representatives~~ the Servicer’s standard operating procedures relating to the Servicer’s acquisition of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed a perfected first priority security interest in the equipment financed by the Servicer pursuant to equipment installment sale contracts in the ordinary course of the ~~performance~~ Servicer’s business. Assuming that the Servicer’s standard procedures have been followed with respect to the perfection of security interests in the Financed Equipment (and such ~~services, they have~~ counsel has no reason to believe that such procedures have not been followed), the ~~Registration Statement including~~ Servicer has acquired or will acquire a perfected first priority security interest in the Financed Equipment. (xvii) The Purchase Agreement grants to the Seller a valid security interest in CFSC’s rights in the Receivables and the proceeds thereof. The Sale and Servicing Agreement grants to the Trust a valid security interest in the Seller’s rights in the Receivables and the proceeds thereof. The Indenture grants to the Indenture Trustee a valid security interest in the Trust’s rights in the Receivables and the proceeds thereof. (xviii) The Receivables are chattel paper as defined in the Uniform Commercial Code (the “UCC”). (xix) Immediately prior to the transfer of the Receivables and the proceeds thereof to the Trust, the Seller had a first priority perfected security interest in the Receivables and the proceeds thereof. Immediately prior to the transfer of the Receivables and the proceeds thereof to the Indenture Trustee, the Trust had a first priority perfected security interest in the Receivables and the proceeds thereof. The Indenture Trustee has a first priority perfected security interest in the Receivables and the proceeds thereof. The opinion covered by this paragraph (xix) shall be subject to customary UCC exceptions and qualifications. (xx) The statements in the Prospectus under the headings “Risk Factors––The notes may suffer losses if other liens have priority over the lien of the indenture,” “Risk Factors––Bankruptcy of Cat Financial or a dealer could result in delays in payment or losses on the notes” and “Certain Legal Aspects of the Receivables” to the extent they constitute matters of law or legal conclusions with respect thereto, are correct in all material respects. (xxi) The statements contained in the Prospectus and any ~~document incorporated by reference~~ supplement thereto under the headings “Description of the Notes,” “Description of the Certificates” and “Description of the Transfer and Servicing Agreements,” insofar as such statements constitute a summary of the Notes, the Certificates, the Indenture, the Administration Agreement, the Sale and Servicing Agreement, the Purchase Agreement and the Trust Agreement, are a fair and accurate summary of the matters referred to therein. (xxii) No consent, ~~on its effective date~~approval, ~~contained~~ authorization or order of, or filing with, any ~~untrue statement~~ court or governmental agency or body is required for the consummation of ~~material fact~~ the transactions contemplated in the Basic Documents, except for such filings with respect to the transfer of the Receivables to the Seller pursuant to the Purchase Agreement and the transfer of the Receivables to the Trust pursuant to the Sale and Servicing Agreement and as may be required under state securities or ~~omitted or omits to state any material fact~~ Blue Sky laws of various jurisdictions. (xxiii) All actions required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein, as of its issue date taken and as of the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (provided that such counsel need express no belief regarding the financial statements and related schedules and other financial or statistical data contained in the Registration Statement, any amendment thereto including any document incorporated by reference therein, or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated all filings required to be ~~based upon such counsel's knowledge or to be given "to~~ made under the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an opinion of Michael Best & Friedrich LLP, ▇▇▇▇▇▇▇ ▇▇▇ the ▇▇▇▇▇▇▇▇ters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect Act prior to the sale of the ~~Shares hereunder, the Registration Statement and other related matters as the Representatives may reasonably require, and the Company shall~~ Notes have ~~furnished to such counsel such documents and shall have exhibited to them such papers and records as such counsel reasonably request for the purpose of enabling them to pass upon such matters~~been duly taken or made. (fxxiv) The Representatives shall have received on each Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the Company, in their respective capacities as such, to the effect that: (i) The representations and warranties of the Company set forth in Section 2 hereof are true and correct as of the date of this Trust Agreement and as of the date of such certificate, and the Company has complied in all material respects with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate; (ii) The Commission has is not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending under the Act or under the Blue Sky Laws of any jurisdiction; (iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be ~~stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make~~ qualified under the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set foTrust Indenture

Appears in 1 contract

Sources: Underwriting Agreement (Caterpillar Financial Asset Trust 2005-A)

Conditions of the Obligations of the Underwriters. The obligations of the several Underwriters ~~under this Agreement shall~~ to purchase and pay for the Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date will be subject to the accuracy of the representations and warranties on the part of the Company ~~herein set forth as of~~ and the ~~date hereof and as of each Closing Date~~Selling Stockholders herein, to the accuracy of the statements of ~~the Company's~~ Company officers made pursuant to the provisions hereof, to the performance ~~in all material respects~~ by the Company and the Selling Stockholders of ~~its~~ their obligations ~~hereunder,~~ hereunder and to the following additional ~~conditions, unless waived in writing by the Representatives~~conditions precedent: (a) The Representatives shall have received a letter, dated the date of delivery thereof (which, if the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement, shall be on or prior to the date of this Agreement or, if the Effective Time of the Initial Registration Statement is subsequent to the execution and delivery of this Agreement, shall be prior to the filing of the amendment or post-effective amendment to the registration statement to be filed shortly prior to such Effective Time), of Ernst & Young, LLP with respect to the financial statements and schedules of the Company contained in the Registration Statement in form and substance satisfactory to the Representatives in all respects. (b) If the Effective Time of the Initial Registration Statement is not prior to the execution and delivery of this Agreement, such Effective Time shall have ~~been declared effective by the Commission~~ occurred not later than ~~5:30 p.m.~~10:00 P.M., ~~Washington, D.C.~~ New York time, on the date of this ~~Agreement,~~ Agreement or such later ~~time and~~ date as shall have been consented to by CSFB and Citigroup. If the ~~Representatives, which consent shall be deemed to have been given if~~ Effective Time of the Additional Registration Statement (if any) is not prior to the execution and delivery of this Agreement, such Effective Time shall have occurred not later than 10:00 P.M., New York time, on the date of this Agreement or, if earlier, the time the Prospectus is printed and distributed to any Underwriter, or shall have occurred at such later date as shall have been ~~declared effective on or before~~ consented to by CSFB and Citigroup. If the ~~date and time requested in the acceleration request submitted on behalf~~ Effective Time of the ~~Representatives pursuant~~ Initial Registration Statement is prior to ~~Rule 461 under~~ the ~~Act; all filings required by Rules 424(b)~~ execution and ~~430A under~~ delivery of this Agreement, the ~~Act~~ Prospectus shall have been ~~timely made;~~ filed with the Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement. Prior to such Closing Date, no stop order suspending the effectiveness of ~~the~~ a Registration Statement shall have been issued ~~by the Commission or any state securities commission nor~~and no proceedings for that purpose shall have been instituted or, to the knowledge of any Selling Stockholder, the ~~Company~~Company or the Representatives, shall ~~any proceedings for that purpose have been instituted or threatened; and any request of~~ be contemplated by the Commission or any state securities commission for inclusion of additional information in the Registration Statement, or otherwise, shall have been complied with to the reasonable satisfaction of the Representatives acting in good faithCommission. (bc) Subsequent to the execution and delivery of this Agreement~~, (i)~~ , there shall not have occurred any change or development involving, or which could be reasonably expected to involve, a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and (ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree having a Material Adverse Effect, the effect of which on the Company, in any such case described in clause (i) any change, or any development or event involving a prospective change, in the condition (~~ii) above~~financial or other), business, properties or results of operations of the Company and its subsidiaries taken as one enterprise which, in the judgment of the Representatives, is ~~in the reasonable and good faith opinion of the Representatives so~~ material and adverse ~~as to make~~ and makes it ~~impracticable~~ impractical or inadvisable to proceed with completion of the public offering or the ~~delivery~~ sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities of the ~~Shares on~~ Company by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the ~~terms and in the manner contemplated in the Registration Statement and the Prospectus. (c) The Representatives shall not have advised~~ Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company ~~that the Registration Statement~~ (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any change in U.S. or ~~Prospectus contains an untrue statement of fact that~~international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the ~~reasonable and good faith opinion~~ judgment of the ~~Representatives~~ Representatives, be likely to prejudice materially the success of the proposed issue, sale or ~~counsel~~ distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any material suspension or material limitation of trading in securities generally on the New York Stock Exchange or any setting of minimum prices for trading on such exchange; (v) or any suspension of trading of any securities of the ~~Underwriters~~Company on any exchange or in the over-the-counter market; (vi) any banking moratorium declared by U.S. Federal or New York authorities; (vii) any major disruption of settlements of securities or clearance services in the United States or (viii) any attack on, ~~is material~~ outbreak or ~~omits to state a fact that~~escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the ~~reasonable and good faith opinion~~ judgment of the ~~Representatives~~ Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or ~~such counsel, is material~~ emergency makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and ~~is required to be stated therein or necessary to make~~ payment for the ~~statements therein not misleading~~Offered Securities. (d) The Representatives shall have received ~~opinions of Foley & Lardner~~an opinion, special couns▇▇ ▇▇r the Company (as to the matters set forth below in subsections (i), (ii), (vi), (viii), (ix) and (xiv)), and the Vice President, General Counsel and Secretary of the Company (as to the matters set forth in subsections (iii), (iv), (v), (vii), (x), (xi), (xii) and (xiii) addressed to the Representatives, as the representatives of the Underwriters, and dated ~~the First Closing Date or the Second~~ such Closing Date, as of Sheppard, Mullin, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the ~~case may be~~Company, to the effect that: (i) The Company has been duly incorporated and is ~~validly~~ an existing ~~as a~~ corporation in good standing under the laws of ~~Delaware,~~ the State of Delaware with ~~full~~ corporate power and authority to ~~own, lease and operate~~ own its properties and conduct its business as ~~presently conducted and as~~ described in the ~~Prospectus and the Registration Statement~~Prospectus; (ii) ~~The authorized capital stock~~ Each subsidiary of the Company ~~consists of 60,000,000 shares of Common Stock, par value $1.00 per share, 14,000,000 shares of Class A common stock, par value $5.00 per share,~~ has been duly incorporated and ~~77,000,000 shares of preferred stock, $1.00 par value per share; (iii) The issued and outstanding shares of capital stock~~ is an existing corporation in good standing under the laws of the ~~Company immediately prior~~ jurisdiction of its incorporation, with power and authority (corporate and other) to ~~the sale of the Shares hereunder have been duly authorized~~ own its properties and validly issued, are fully paid and nonassessable (except, to the extent applicable, as otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law, as judicially interpreted), and, to such counsel's knowledge, there are no preemptive, preferential or, except conduct its business as described in the Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights; (iv) The Significant Subsidiary is validly existing as a corporation in good standing or active status under the laws of Tennessee, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; ~~to such counsel's knowledge, the Company owns directly or indirectly and beneficially~~ all of the issued and outstanding capital stock of each subsidiary of the ~~Significant Subsidiary~~Company has been duly authorized and validly issued and is fully paid and nonassessable; and the capital stock of each subsidiary owned by the Company, directly or through subsidiaries, is owned free from liens, encumbrances and defects; (viii) The ~~certificates for the Shares to be~~ Offered Securities delivered ~~hereunder conform in~~ on such Closing Date and all ~~material respects to the requirements~~ other outstanding shares of the ~~Delaware General Corporation Law and the rules and regulations~~ Common Stock of the ~~New York~~ Company have been duly authorized; all outstanding shares of Common Stock ~~Exchange;~~ of the Company are, and when ~~duly countersigned by~~ the ~~Company's transfer agent,~~ Offered Securities have been delivered and ~~delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor~~ paid for in accordance with ~~the provisions of~~ this ~~Agreement~~Agreement on such Closing Date, ~~the Shares represented thereby~~ will be ~~duly authorized and~~ validly issued, fully paid and nonassessable ~~(except,~~ and conform as to legal matters to the ~~extent applicable, as otherwise provided~~ description thereof contained in ~~Section 180.0622(2)(b)~~ the Prospectus in all material respects; and the stockholders of the ~~Wisconsin Business Corporation Law~~Company have no preemptive rights with respect to the Securities under federal, New York, Delaware or California law or under any contracts or instruments of the Company; (iv) There are no contracts, agreements or understandings known to such counsel between the Company and any person granting such person the right to require the Company to file a registration statement under the Act 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 the securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Act other than the Investors Rights Agreement dated as ~~judicially interpreted)~~of September 27, 2004 among the Company and the other parties thereto; (v) The Company is not and, after giving effect to the offering and sale of the Offered Securities and the application of the proceeds thereof as described in the Prospectus, will not be an "investment company" as defined in the Investment Company Act of 1940; (vi) No consent, approval, authorization or order of, or filing with, any federal, New York, Delaware or California governmental agency or body or any court is required to be obtained or made by the Company or any Selling Stockholder for the consummation of the transactions contemplated by this Agreement or the Custody Agreement in connection with the sale of the Offered Securities, except such as have been obtained and made under the Act and the Securities Exchange Act of 1934 and such as may be required under state securities laws as to which such counsel need not express any opinion; (vii) The execution, delivery and performance of this Agreement or the Custody Agreement and the consummation of the transactions herein or therein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (A) any federal, New York, Delaware or California statute, rule or regulation, (B) any order of any federal, New York, Delaware or California governmental agency or body or any court acting pursuant to federal, New York, Delaware or California law having jurisdiction over the Company or any subsidiary of the Company or any of their properties known to us, (C) any agreement or instrument to which the Company or any such subsidiary is a party or by which the Company or any such subsidiary is bound or to which any of the properties of the Company or any such subsidiary is subject, or (D) the charter or by-laws of the Company or any such subsidiary; and (viii) This Agreement has been duly authorized, executed and delivered by the Company. The Representatives shall have received a letter, dated such Closing Date, from Sheppard, Mullin, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Company, to the effect that the Initial Registration Statement ~~has become~~ was declared effective under the Act as of the date and time specified in such opinion, the Additional Registration Statement (if any) was filed and became effective under the Act as of the date and time (if determinable) specified in such opinion, the Prospectus either was filed with the Commission pursuant to the subparagraph of Rule 424(b) specified in such opinion on the date specified therein or was included in the Initial Registration Statement or the Additional Registration Statement (as the case may be), and, to the knowledge of such counsel~~'s knowledge~~, no stop order suspending the effectiveness of ~~the~~ a Registration Statement or any part thereof has been issued and no proceedings for that purpose have been instituted or are ~~threatened by~~ pending or contemplated under the ~~Commission; the~~ Act, and each Registration Statement and the ~~Prospectus~~ Prospectus, and ~~any~~ each amendment or supplement thereto, ~~including any document incorporated by reference into the Registration Statement (except for the financial statements and schedules and other statistical~~ as of their respective effective or ~~financial data included therein~~issue dates, ~~as to which such counsel need express no opinion) comply~~ complied as to form in all material respects with the requirements of the Act; the conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied; (vii) To such counsel's knowledge, there are no pending or threatened legal or governmental proceedings that are required to be described in the Registration Statement or the Prospectus that are not so described, nor, to such counsel's knowledge, is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or required to be filed under the Exchange Act if upon such filing they would be incorporated, in whole or in part, by reference therein, or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference required; (viii) Statements set forth in the Prospectus under the heading "Description of Capital Stock," in the description of the Common Stock contained in the Company's Registration Statement on Form 8-A, filed with the Commission on December 9, 1994, and in the Registration Statement under Item 15 insofar as such statements constitute a summary of the legal matters, documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings; (ix) The Company has full corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the ~~consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action~~ Rules and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution hereunder may be limited by applicable law and except as to enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable reliefRegulations; and, to such counsel's knowledge, no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company, is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements with the NASD); (x) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or Bylaws of the Company or the Significant Subsidiary; (B) violate any of the provisions of, or result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or the Significant Subsidiary is a party or by which the Company or the Significant Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (C) violate any statute, ordinance, order, rule, decree or regulation of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States having jurisdiction over the Company or the Significant Subsidiary (assuming compliance with all applicable federal and state securities laws); (xi) To such counsel's knowledge, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities under the Act or any Blue Sky Laws; (xii) The Shares are authorized for trading on the New York Stock Exchange; (xiii) To such counsel's knowledge, neither the Company nor the Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or Bylaws; and (xiv) The Company is not an "investment company," as such term is defined in the Investment Company Act of 1940, as amended. Such counsel shall also state that they have participated in conferences with officers and other representatives of the Company, representatives of auditors for the Company and representatives of the Underwriters and their counsel during which the content of the Registration Statement and the Prospectus and related matters were discussed and reviewed, and that, although such counsel is not verifying, is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained or incorporated by reference into the Registration Statement or the Prospectus, on the basis of the information that was developed in the course of the performance of such services, they have no reason to believe that ~~the~~ any part of a Registration Statement ~~including~~ or any ~~document incorporated by reference therein~~amendment thereto, on as of its effective ~~date~~date or as of such Closing Date, contained any untrue statement of a material fact or omitted ~~or omits~~ to state any material fact required to be stated therein or necessary to make the statements therein not misleading, ; or that the ~~Prospectus,~~ Prospectus or any amendment or supplement ~~thereto including any document incorporated by reference therein~~thereto, as of its issue date ~~and~~ or as of ~~the~~ such Closing Date, contained ~~or contains~~ any untrue statement of a material fact or omitted ~~or omits~~ to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading (provided~~ misleading; the descriptions in the Registration Statements and Prospectus of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information required to be shown; and such counsel do not know of any legal or governmental proceedings required to be described in a Registration Statement or the Prospectus which are not described as required or of any contracts or documents of a character required to be described in a Registration Statement or the Prospectus or to be filed as exhibits to a Registration Statement which are not described and filed as required; it being understood that such counsel need express no ~~belief regarding~~ opinion as to the financial statements ~~and related~~ or schedules ~~and~~ or other ~~financial~~ financial, statistical or ~~statistical~~ accounting data contained in the Registration ~~Statement, any amendment thereto including any document incorporated by reference therein,~~ Statements or the Prospectus, or any amendment or supplement thereto including any document incorporated by reference therein). To the extent that any of such opinions are stated to be based upon such counsel's knowledge or to be given "to the knowledge of such counsel," such qualification shall signify that no information has come to the attention of the attorneys in such firm who have been involved in the preparation or review of the Registration Statement or the Prospectus that would give them actual current knowledge of the existence or absence of such matter in question. In rendering such opinion, counsel for the Company may rely, to the extent counsel deems such reliance proper, as to matters of fact upon certificates of officers of the Company and any governmental officials, and copies of all such certificates shall be furnished to the Representatives and for the Underwriters on or before each Closing Date. (e) The Representatives shall have received an ~~opinion~~ opinion, dated such Closing Date, of ~~Michael Best~~ Sheppard, Mullin, ▇▇▇▇▇▇▇ & ~~Friedrich~~ ▇▇▇▇▇▇▇▇ LLP, counsel for the Selling Stockholders, to the effect that: (i) Each Selling Stockholder had valid and unencumbered title to the Offered Securities delivered by such Selling Stockholder on such Closing Date and had full right, power and authority to sell, assign, transfer and deliver the Offered Securities delivered by such Selling Stockholder on such Closing Date hereunder; and the several Underwriters have acquired valid and unencumbered title to the Offered Securities purchased by them from the Selling Stockholders on such Closing Date hereunder; (ii) No consent, approval, authorization or order of, or filing with, any federal, New York, Delaware or California governmental agency or body or any court is required to be obtained or made by any Selling Stockholder for the consummation of the transactions contemplated by the Custody Agreement or this Agreement in connection with the sale of the Offered Securities sold by the Selling Stockholders, except such as have been obtained and made under the Act and the Securities Exchange Act of 1934 and such as may be required under state securities laws, as to which such counsel need not express any opinion; (iii) The execution, delivery and performance of the Custody Agreement and this Agreement and the consummation of the transactions therein contemplated will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (A) any federal, New York, Delaware or California statute, rule or regulation, (B) any order of any federal, New York, Delaware or California governmental agency or body or any court acting pursuant to federal, New York, Delaware or California law having jurisdiction over any Selling Stockholder or any of their properties known to us, (C) any agreement or instrument to which Selling Stockholder is a party or by which any Selling Stockholder is bound or to which any of the properties of any Selling Stockholder is subject, or (D) the charter or by-laws of any Selling Stockholder which is a corporation; (iv) The Power of Attorney and related Custody Agreement with respect to each Selling Stockholder has been duly authorized, executed and delivered by such Selling Stockholder and constitute valid and legally binding obligations of each such Selling Stockholder enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors' rights and to general equity principles; and (v) This Agreement has been duly authorized, executed and delivered by each Selling Stockholder. (f) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ~~the~~ & ▇▇▇▇▇▇▇~~▇ters~~▇ LLP, counsel for the Underwriters, such opinion or opinions, dated ~~the First Closing Date or the Second~~ such Closing Date~~, as the case may be~~, with respect to the ~~sale~~ incorporation of the ~~Shares hereunder~~Company, the validity of the Offered Securities delivered on such Closing Date, the Registration ~~Statement~~ Statements, the Prospectus and other related matters as the Representatives may ~~reasonably~~ require, and the Selling Stockholders and the Company shall have furnished to such counsel such documents ~~and shall have exhibited to them such papers and records~~ as ~~such counsel reasonably~~ they request for the purpose of enabling them to pass upon such matters. (fg) The Representatives shall have received ~~on each~~ a certificate, dated such Closing Date, a certificate of Kenneth W. Krueger, Senior Vic▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ief Financial Officer, and W. David Romoser, Vice President, ▇▇▇▇▇▇▇ ▇▇▇▇sel and Secretary, of the ~~Company,~~ President or any Vice President and a principal financial or accounting officer of the Company in ~~their respective capacities as such~~which such officers, to the ~~effect~~ best of their knowledge after reasonable investigation, shall state that~~: (i) The~~ : the representations and warranties of the Company ~~set forth~~ in ~~Section 2 hereof~~ this Agreement are true and ~~correct as of the date of this Agreement and as of the date of such certificate, and~~ correct; the Company has complied ~~in all material respects~~ with all ~~the~~ agreements and satisfied all ~~the~~ conditions on its part to be performed or satisfied ~~by it~~ hereunder at or prior to ~~the date of~~ such ~~certificate; (ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto~~Closing Date; no stop order suspending the effectiveness of ~~the~~ any Registration Statement has been ~~issued;~~ issued and ~~to the knowledge of the respective signatories,~~ no proceedings for that purpose have been ~~initiated~~ instituted or are ~~pending~~ contemplated by the Commission; the Additional Registration Statement (if any) satisfying the requirements of subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule 462(b), including payment of the applicable filing fee in accordance with Rule 111(a) or (b) under the ~~Act or under~~ Act, prior to the ~~Blue Sky Laws of~~ time the Prospectus was printed and distributed to any ~~jurisdiction; (iii) Each~~ Underwriter; and, subsequent to the dates of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements of material fact required to be stated therein, and do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set fomost recent f

Appears in 1 contract

Sources: Underwriting Agreement (Fastclick Inc)

Common use of Conditions of the Obligations of the Underwriters Clause in Contracts