Conditions to the Obligations of the Agents Sample Clauses: 145 Samples

Conditions to the Obligations of the Agents. The obligations of each ------------------------------------------- Agent to solicit offers to purchase the Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, on the Effective Date, when any supplement to the Prospectus is filed with the Commission and as of each Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have furnished to each Agent the opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ (or such other counsel reasonably satisfactory to the Agents), counsel for the Company, dated the Execution Time, to the effect that: (i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Alabama, with full corporate power and authority to own its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business and wherein the failure to be so qualified would have a material adverse effect on the business of the Company and the subsidiaries taken as a whole; (ii) each of the Subsidiaries has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own its properties and conduct its business as described in the Prospectus, and Alabama Gas Corporation is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, except where the failure to so qualify does not have a material adverse effect on the business of the Company and its subsidiaries as a whole; (iii) all the outstanding shares of capital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances (with the exception of those encumbrances in the Indenture); (iv) the Company's authorized equity capitalization is as set forth in the Prospectus; and the Notes conform to the description thereof contained in the Prospectus (subject to the insertion in the Notes of the maturity dates, the interest rates and other similar terms thereof which will be described in supplements to the Prospectus as contemplated by the fourth sentence of Section 1(a) of this Agreement); (v) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, fraudulent conveyance, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect, and by the availability of specific performance or of other equitable relief which is subject to the discretion of the court before which any proceeding may be brought); and up to an aggregate principal amount of $__________ of the Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the purchasers thereof, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture (other than the indemnity provisions contained in Section 8 hereof or Section 701 of the Indenture as to which such counsel need express no opinion); (vi) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated by reference in the Prospectus describing material contracts or agreements relating to the Company fairly summarize such matters; (vii) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been or will be made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened; and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; and such counsel has no reason to believe that the Registration Statement at the Effective Date or at the Execution Time 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 includes any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (viii) this Agreement has been duly authorized, executed and delivered by the Company; (ix) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated herein except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the sale of the Notes as contemplated by this Agreement and such other approvals (specified in such opinion) as have been obtained; (x) neither the execution and delivery of the Indenture, the issue and sale up to an aggregate principal amount of $__________ of the Notes, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or by-laws of the Company or the terms of any indenture or other agreement or instrument known to such counsel and to which the Company or any of its Subsidiaries is a party or bound or any judgment, order, regulation or decree known to such counsel to be applicable to the Company or any of its Subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any of its Subsidiaries; (xi) to the knowledge of such counsel no holders of securities of the Company have rights to the registration of such securities under the Registration Statement; (xii) the information contained in the Prospectus under the caption "Certain Tax Considerations" is a fair and accurate summary of the principal Federal income tax consequences associated with the ownership of the Notes; and (xiii) the Company is exempt from all provisions of the 1935 Act except Section 9(a)(2) thereof. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Alabama or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Agent and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the date such opinion is rendered. (c) Each Agent shall have received from Winthrop, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (or such other counsel reasonably satisfactory to the Company and the Agents), counsel for the Agents, such opinion or opinions, dated the Execution Time, with respect to the issuance and sale of the Notes, the Indenture, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Agents may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to each Agent a certificate of the Company, signed by the Chairman of the Board or the president and the principal financial or accounting officer of the Company, dated the Execution Time, to the effect that the signers of such certificate have reviewed the Registration Statement, the Prospectus, any supplement to the Prospectus and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the date hereof with the same effect as if made on the date hereof and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied as a condition to the obligation of the Agents to solicit offers to purchase the Notes; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto). (e) At the Execution Time, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (or such other accountants reasonably satisfactory to the Company and the Agents) shall have furnished to each Agent a letter or letters (which may refer to letters previously delivered to the Agents), dated as of the Execution Time, in form and substance satisfactory to the Agents, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and stating in effect that: (i) in their opinion the audited financial statements, financial statement schedules and pro forma financial statements, if any, included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations; (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; the performance of the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in SAS No. 71, Interim Financial Information, ----------------------------- on the latest unaudited financial statements, if any, included or incorporated by reference in the Prospectus; a reading of the minutes of the meetings of the stockholders, directors, audit and finance committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to the date of the most recent audited financial statements included or incorporated in the Prospectus (it being understood that the foregoing procedures do not constitute an examination made in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter), nothing came to their attention which caused them to believe that: (1) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; and that any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; (2) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated in the Registration Statement and the Prospectus, there were any changes, at a specified date not more than five business days prior to the date of the letter, in the common stock, preferred stock, current liabilities or long-term debt of the Company and its subsidiaries or decreases in the total common stockholders' equity of the Company as compared with the amounts shown on the most recent balance sheet included or incorporated in the Registration Statement and the Prospectus, or for the period from the most recent fiscal year of the Company to the date of the most recent available financial statements (audited or unaudited) of the Company there were any decreases, as compared with the corresponding period in the preceding year in operating revenues, operating income, other income or net income of the Company and its subsidiaries except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Agents; or (3) the amounts included in any unaudited "capsule" information included or incorporated in the Registration Statement and the Prospectus do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated in the Registration Statement and the Prospectus; (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement, including the information included or incorporated in Items 1, 2, 6, 7 and 11 of the Company's Annual Report on Form 10-K, incorporated in the Registration Statement and the Prospectus, and the information included in the "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated in the Company's Quarterly

Appears in 1 contract

Sources: Selling Agency Agreement (Energen Corp)

Conditions to the Obligations of the Agents. The ~~obligations~~ obligation of each ~~------------------------------------------- Agent~~ of the Agents to solicit offers to purchase the Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the ~~Execution Time~~date hereof, on as of the ~~Effective Date~~date of the effectiveness of any amendment to the Registration Statement (including the filing of any document incorporated by reference therein), ~~when~~ as of the date any supplement to the Prospectus is filed with the ~~Commission~~ SEC, as of each Acceptance Date and as of each Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); and no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have furnished to ~~each Agent~~ the Agents the opinion of ~~▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ (or such other~~ counsel ~~reasonably satisfactory~~ to ~~the Agents), counsel for~~ the Company, dated the ~~Execution Time~~date hereof, to the effect that: (i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the ~~State~~ state of ~~Alabama~~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 do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases ~~material~~ properties or conducts material business and wherein the failure to be so qualified would have a material adverse effect on the business of the Company and the subsidiaries taken as a whole; (ii) each of the Subsidiaries has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own its properties and conduct its business as described in the Prospectus, and Alabama Gas Corporation is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, except where the failure to so qualify ~~does~~ would not have a material adverse effect on the ~~business of the Company and its subsidiaries as a whole~~Company; (iii) all the outstanding shares of capital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances (with the exception of those encumbrances in the Indenture); (iv) the Company's authorized equity capitalization is as set forth in the Prospectus; and the Notes conform to the description thereof contained in the Prospectus (subject to the insertion in the Notes of the maturity dates, the interest rates and other similar terms thereof which will be described in supplements to the Prospectus as contemplated by the fourth sentence of Section 1(a) of this Agreement); (vii) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, ~~fraudulent conveyance,~~ insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or ~~other laws~~ affecting creditors' ~~rights~~ rights, generally from time to time in ~~effect,~~ effect and ~~by the availability~~ to general principles of ~~specific performance or of other equitable relief which is subject to the discretion of the court before which any proceeding may be brought~~equity); the Notes have been duly authorized and ~~up to an aggregate principal amount of $__________~~ established in conformity with the Indenture, and, when the terms of the Notes have been duly ~~authorized and~~established in conformity with the Indenture so as not to violate or conflict with any provisions of law or any agreement or instrument applicable to the Company or any of its properties, when the Notes have been duly executed by the proper officers of the Company, registered and duly authenticated ~~in accordance with the provisions of~~ pursuant to the Indenture and delivered to and paid for by the purchasers thereof, the Notes will constitute legal, valid and binding obligations of the Company entitled to the benefits of the ~~Indenture (other than the indemnity provisions contained in Section 8 hereof or Section 701 of the Indenture as to which such counsel need express no opinion)~~Indenture; (viiii) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, ~~authority or~~ authority, body or any arbitrator involving the ~~Company or any of its subsidiaries~~Company, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated ~~by reference~~ in the Prospectus describing any legal proceedings or material contracts or agreements relating to the Company fairly summarize such matters; (~~vii~~iv) the Registration Statement ~~has~~ and any amendments thereto have become effective under the Securities Act~~; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been or will be made in the manner and within the time period required by Rule 424(b)~~; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been ~~issued and~~ issued, no proceedings for that purpose have been instituted or threatened; , and the Registration ~~Statement and~~ Statement, the Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than the financial statements and other financial and statistical information contained therein as to which such counsel need express no opinion) ~~comply~~ complied as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Trust Indenture Act and the respective rules and regulations thereunder; and such counsel has no reason to believe that the Registration ~~Statement~~ Statement, or any amendment thereof, at the ~~Effective Date~~ time it became effective or at the ~~Execution Time~~ date of this Agreement, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the ~~Prospectus includes~~ Prospectus, at its issue date or at the date of this Agreement, included any untrue statement of a material fact or ~~omits~~ omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (~~viii~~v) this Agreement has been duly authorized, executed and delivered by the Company; (ixvi) no order, consent, approval, ~~authorization~~ authorization, registration or ~~order~~ qualification of or with any ~~court or~~ governmental agency or body having jurisdiction over the Company or any of its properties is required for the issue and sale of the Notes or the consummation by the Company of the transactions contemplated ~~herein~~ by this Agreement or the Indenture, except such as have been, or will have been prior to the Closing Date, obtained under the Securities Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under ~~the blue sky~~ state securities or Blue Sky laws ~~of any jurisdiction~~ in connection with the sale and distribution of the ~~Notes as contemplated by this Agreement and such other approvals (specified in such opinion) as have been obtained;~~Notes; and (xvii) neither the execution and delivery of the ~~Indenture~~Indenture or this Agreement, the issue and sale ~~up to an aggregate principal amount of $__________~~ of the ~~Notes~~Notes (when the terms of the Notes have been duly established in conformity with the Indenture so as not to violate or conflict with any provisions of law or any agreement or instrument applicable to the Company or any of its properties and when the Notes have been duly executed by the proper officers of the Company, registered and duly authenticated pursuant to the Indenture and delivered to and paid for by the purchasers thereof), nor the consummation of any other of the transactions herein or therein contemplated nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach ~~or violation~~ of, or constitute a default ~~under any law or~~ under, the charter or by-laws of the Company or the terms of any indenture or other agreement or instrument known to such counsel and to which the Company is a party or by which the Company or any of its ~~Subsidiaries~~ assets is ~~a party or bound~~ bound, or any ~~judgment, order,~~ order or regulation ~~or decree~~ known to such counsel to be applicable to the Company ~~or any of its Subsidiaries~~ of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the ~~Company or any of its Subsidiaries; (xi)~~ Company. In rendering such opinion, such counsel may rely, as to the ~~knowledge of such counsel no holders of securities~~ execution of the ~~Company have rights to~~ Indenture by the ~~registration of such securities under the Registration Statement; (xii) the information contained in the Prospectus under the caption "Certain Tax Considerations" is~~ Trustee, upon a ~~fair and accurate summary~~ certificate of the ~~principal Federal income tax consequences associated with~~ Trustee setting forth the ~~ownership of the Notes; and (xiii) the Company is exempt from all provisions of the 1935 Act except Section 9(a)(2) thereof~~facts as to such execution. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the ~~State~~ state of ~~Alabama~~ California or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to ~~counsel for~~ the ~~Agent~~ Agents and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials. ~~References to the Prospectus in this paragraph (b) include any supplements thereto at the date~~ In rendering such opinion ~~is rendered~~with respect to clause (vi) above, insofar as it relates to regulatory authorities in the states in which the Company operates, such counsel may rely on the opinions of local counsel satisfactory to such counsel. (c) ~~Each Agent~~ The Agents shall have received from ~~Winthrop,~~ ▇▇~~▇▇▇▇▇,~~ ▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇ (or such other counsel reasonably satisfactory to the Company and the Agents)~~▇▇, counsel for the Agents, such opinion or opinions, dated the ~~Execution Time~~date hereof, with respect to the issuance and sale of the Notes, the Indenture, the Registration Statement, the Prospectus ~~(together with any supplement thereto)~~ and other related matters as the Agents may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to ~~each Agent~~ the Agents a certificate ~~of the Company,~~ signed by ~~the~~ its Chairman of the Board or ~~the president~~ its President or a Vice President and ~~the principal financial~~ its Treasurer or ~~accounting officer of the Company, dated the Execution Time,~~ an Assistant Treasurer stating that after reasonable investigation and to the ~~effect that the signers~~ best of ~~such certificate have reviewed the Registration Statement, the Prospectus, any supplement to the Prospectus and this Agreement and that~~their knowledge: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the date hereof with the same effect as if made on the date ~~hereof and~~ hereof; the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied as a condition to the obligation of the Agents to solicit offers to purchase the Notes; and the conditions set forth in Paragraph 5(a) have been fulfilled; (ii) ~~no stop order suspending the effectiveness~~ as of ~~the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and (iii) since~~ the date of the ~~most recent financial statements included in the Prospectus (exclusive of any supplement thereto)~~Prospectus, there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto). (e) At the Execution Time, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (or such other accountants reasonably satisfactory to the Company and the Agents) shall have furnished to each Agent a letter or letters (which may refer to letters previously delivered to the Agents), dated as of the Execution Time, in form and substance satisfactory to the Agents, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and stating in effect that: (i) in their opinion the audited financial statements, financial statement schedules and pro forma financial statements, if any, included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations; (ii) on the basis did not include any untrue statement of a ~~reading of the latest unaudited financial statements made available by the Company~~ material fact and its subsidiaries; the performance of the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in SAS No. 71, Interim Financial Information, ----------------------------- on the latest unaudited financial statements, if any, included or incorporated by reference in the Prospectus; a reading of the minutes of the meetings of the stockholders, directors, audit and finance committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as did not omit to transactions and events subsequent to the date of the most recent audited financial statements included or incorporated in the Prospectus (it being understood that the foregoing procedures do not constitute an examination made in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter), nothing came to their attention which caused them to believe that: (1) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; and that any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; (2) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated in the Registration Statement and the Prospectus, there were any changes, at a specified date not more than five business days prior to the date of the letter, in the common stock, preferred stock, current liabilities or long-term debt of the Company and its subsidiaries or decreases in the total common stockholders' equity of the Company as compared with the amounts shown on the most recent balance sheet included or incorporated in the Registration Statement and the Prospectus, or for the period from the most recent fiscal year of the Company to the date of the most recent available financial statements (audited or unaudited) of the Company there were any decreases, as compared with the corresponding period in the preceding year in operating revenues, operating income, other income or net income of the Company and its subsidiaries except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Agents; or (3) the amounts included in any unaudited "capsule" information included or incorporated in the Registration Statement and the Prospectus do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated in the Registration Statement and the Prospectus; (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement, including the information included or incorporated in Items 1, 2, 6, 7 and 11 of the Company's Annual Report on Form 10-K, incorporated in the Registration Statement and the Prospectus, and the information included in the "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated in the Company's Quarterlystate

Appears in 1 contract

Sources: Selling Agency Agreement (Pacific Bell)

Conditions to the Obligations of the Agents. The obligations of each ~~-------------------------------------------~~ Agent to solicit offers to purchase the Notes shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, on the Effective ~~Date,~~ Date and when any supplement to the Prospectus is filed with the ~~Commission and as of each Closing Date~~Commission, to (ii) the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to (iii) the performance by the Company of its obligations hereunder and to (iv) the following additional conditions: (a) If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule ~~424(b)~~424, the Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule ~~424(b)~~424; and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have furnished to each Agent the opinion of ~~▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ (or such other counsel reasonably satisfactory to the Agents),~~ counsel for the Company, dated the Execution Time, to the effect that: (i) ~~the~~ The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the ~~State~~ jurisdiction of ~~Alabama~~its incorporation, with ~~full corporate~~ power and authority (corporate and governmental) to own its properties and conduct its business as described in the Prospectus, as amended or supplemented, and is duly qualified to do business ~~as a foreign corporation and is~~ in ~~good standing under the laws of~~ each jurisdiction in which ~~requires such qualification wherein~~ it owns or leases ~~material properties~~ real property or ~~conducts material~~ in which the conduct of its business ~~and wherein~~ requires such qualification except where the failure to be so ~~qualified~~ qualified, considering all such cases in the aggregate, does not involve a material risk to the business, properties, financial position or results of operations of the Company. (ii) To the best of such counsel’s knowledge and other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending to which the Company is a party or of which any property of the Company is the subject which, if determined adversely to the Company, would individually or in the aggregate have a material adverse effect on the ~~business~~ consolidated financial position, shareholders’ equity or results of operations of the ~~Company and~~ Company; and, to the ~~subsidiaries taken as a whole; (ii) each~~ best of ~~the Subsidiaries has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered~~ such counsel’s knowledge, no such proceedings are threatened or organized, with full corporate power and authority to own its properties and conduct its business as described in the Prospectus, and Alabama Gas Corporation is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns contemplated by governmental authorities or ~~leases material properties or conducts material business, except where the failure to so qualify does not have a material adverse effect on the business of the Company and its subsidiaries as a whole;~~threatened by others. (iii) ~~all the outstanding shares of capital stock of each Subsidiary have~~ This Agreement has been duly authorized, executed and ~~validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of the Subsidiaries are owned~~ delivered by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances (with the exception of those encumbrances in the Indenture);Company. (iv) the Company's authorized equity capitalization is as set forth in the Prospectus; and the Notes conform to the description thereof contained in the Prospectus (subject to the insertion in the Notes of the maturity dates, the interest rates and other similar terms thereof which will be described in supplements to the Prospectus as contemplated by the fourth sentence of Section 1(a) of this Agreement); (v) the The Indenture has been duly authorized, executed and ~~delivered~~delivered by the Company and constitutes a valid and legally binding instrument, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting the enforcement of creditors’ rights generally, to general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to an implied covenant of good faith and fair dealing; and the Indenture has been duly qualified under the Trust Indenture Act, . (v) The issuance and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, fraudulent conveyance, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect, and by the availability of specific performance or of other equitable relief which is subject to the discretion of the court before which any proceeding may be brought); and up to an aggregate principal amount of $__________ sale of the Notes have been duly and validly authorized by the Company and, when issued within the limitations set forth in the applicable order or orders from the Public Service Commission of the State of New York referred to in paragraph (x) below and executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the purchasers ~~thereof~~thereof in accordance with this Agreement, the Notes will constitute ~~legal,~~ valid and legally binding obligations of the Company enforceable in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting the enforcement of creditors’ rights generally, to general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and to an implied covenant of good faith and fair dealing, and will be entitled to the ~~benefits~~ benefit provided by the Indenture equally and ratably with the securities outstanding thereunder (except insofar as a sinking fund established in accordance with the provisions of the Indenture ~~(other than~~ may afford additional benefit for the ~~indemnity provisions~~ securities of any particular series); and the Notes and the Indenture conform as to legal matters to the descriptions thereof contained in ~~Section 8 hereof or Section 701~~ the Registration Statement and the Prospectus. (vi) The issue and sale of the Notes and the compliance by the Company with all of the provisions of the Notes, the Indenture and this Agreement and the consummation of the transactions therein and herein contemplated (except as to compliance with any financial covenant requiring an arithmetic computation not determinable at the Execution Time as to which such counsel need express no opinion~~); (vi~~) to will not conflict with or result in a breach of any of the ~~knowledge~~ terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or material other agreement or instrument known, as of the date of such ~~counsel~~opinion, ~~there~~ to such counsel to which the Company is ~~no pending~~ a party or ~~threatened action~~by which the Company is bound or to which any of the property or assets of the Company is subject, ~~suit~~ nor will such action result in any violation of the provisions of the Company’s Certificate of Incorporation, as amended, or ~~proceeding before~~ the Bylaws of the Company or any statute or any order, rule or regulation known, as of the date of such opinion, to such counsel of any court or governmental ~~agency, authority~~ agency or body ~~or any arbitrator involving~~ having jurisdiction over the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated by reference in the Prospectus describing material contracts or agreements relating to the Company fairly summarize such matters;properties. (vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body having jurisdiction over the ~~Registration Statement has become effective~~ Company or any of its properties is required for the issue and sale of the Notes or the consummation by the Company of the other transactions contemplated by this Agreement or the Indenture, except such as have been obtained under the ~~Act; any~~ Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required ~~filing~~ under state securities or Blue Sky laws in connection with the public offering of the ~~Prospectus~~Notes, and ~~any supplements thereto~~except for filings with and the order or orders from the Public Service Commission of the State of New York authorizing the issuance and sale by the Company of the Notes subject to certain conditions set forth therein, ~~pursuant to Rule 424(b) has~~ which order or orders have been ~~or will be made in the manner and within the time period required by Rule 424(b);~~ obtained and, to the best knowledge of such counsel, ~~no stop order suspending~~ are in full force and effect. (viii) The Registration Statement, at the ~~effectiveness~~ Effective Date, and the Prospectus, as of the ~~Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened; and the Registration Statement and the Prospectus~~ date of such opinion (~~other than~~ except as to the financial statements and other financial or statistical data contained or incorporated by reference therein and ~~statistical information contained therein~~ except for that part of the Registration Statement which shall constitute the Statements of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee, as to which such counsel need express no opinion) comply as to form in all material respects with ~~the~~ all applicable requirements of the Act, and, with respect to the documents or portions thereof filed with the Commission pursuant to the Exchange Act and incorporated by reference in the Prospectus pursuant to Item 12 of Form S-3, the Exchange Act and the ~~Trust Indenture Act~~ applicable instructions, rules and regulations of the ~~respective rules~~ Commission thereunder; on the basis of information received from the Commission, at the date of such opinion, the Registration Statement has become effective under the Act, and, to the best knowledge of such counsel, no proceedings for a stop order with respect thereto have been instituted or are pending or threatened under Section 8 of the Act; and based on such counsel’s participation in the preparation of the Registration Statement and Prospectus and its services as counsel to the Company (but such opinion may state that such counsel did not independently check or verify the correctness of the statements made by the Company or factual information included in the Registration Statement and Prospectus, and thereby may assume the correctness thereof, except insofar as such statements or information relate to such counsel or are stated in the Registration Statement or Prospectus as having been made on their authority as experts), no facts have come to the attention of such counsel to cause them to believe, and such counsel ~~has~~ have no reason to ~~believe~~ believe, that the Registration ~~Statement~~ Statement, at the Effective ~~Date or at the Execution Time~~ Date, contained ~~any~~ an untrue statement of a material fact or omitted to state ~~any~~ a material fact required to be stated therein or necessary to make the statements therein not misleading (except as to the financial statements or other financial or statistical data contained in or incorporated by reference in the Registration Statement and the Prospectus and except for that part of the Registration Statement which shall constitute the Statements of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee), or that the ~~Prospectus~~ Prospectus, as of the date of such opinion, includes ~~any~~ an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading;~~ misleading (~~viii) this Agreement has been duly authorized, executed~~ except as to the financial statements or other financial or statistical data contained in or incorporated by reference in the Registration Statement and ~~delivered by~~ the ~~Company;~~Prospectus). (ix) ~~no consent, approval, authorization or order of any court or governmental agency or body is required for~~ The Company’s gas distribution activities are exempt from the ~~consummation~~ Natural Gas Act. (x) The Public Service Commission of the ~~transactions contemplated herein except such as have been obtained under~~ State of New York has issued an appropriate order or orders with respect to the ~~Act~~ issuance and ~~such as may be required under the blue sky laws of any jurisdiction in connection with the~~ sale of the Notes ~~as contemplated by~~ in accordance with this Agreement; to the best knowledge of such counsel, such order or orders are still in full force and effect; the issuance and sale of the Notes in accordance with this Agreement and ~~such other approvals (specified~~ subject to the limitations set forth in such opinion) as have been obtained; (x) neither the execution and delivery of the Indenture, the issue and sale up to an aggregate principal amount of $__________ of the Notes, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof orders will ~~conflict with, result in a breach or violation of, or constitute a default under any law or the charter or by-laws of the Company or~~ conform with the terms of ~~any indenture~~ such order or ~~other agreement or instrument known~~ orders. As to ~~such counsel and to which the Company or any of its Subsidiaries is a party or bound or any judgment, order, regulation or decree known to such counsel to be applicable~~ factual matters (including relating to the ~~Company or any of its Subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any of its Subsidiaries; (xi~~Company’s financial condition) ~~to the knowledge of such counsel no holders of securities of the Company have rights to the registration of such securities under the Registration Statement; (xii) the information contained~~ included in the Prospectus under the caption "Certain Tax Considerations" is a fair and accurate summary of the principal Federal income tax consequences associated with the ownership of the Notes; and (xiii) the Company is exempt from all provisions of the 1935 Act except Section 9(a)(2) thereof. In rendering such said opinion, such counsel may rely ~~(A) as to matters involving the application of laws of any jurisdiction other than the State of Alabama or the United States, to the extent deemed proper and specified in such opinion,~~ upon ~~the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Agent and (B) as to matters of fact, to the extent deemed proper, on~~ certificates of ~~responsible officers~~ public officials as of a recent date, the warranties and representations of the Company set forth in this Agreement, and ~~public officials. References~~ certificates of the Company made pursuant to the ~~Prospectus in~~ provisions of this ~~paragraph (b) include any supplements thereto at the date such opinion is rendered~~Agreement. (c) Each Agent shall have received from ~~Winthrop, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (or such other counsel reasonably satisfactory to the Company and the Agents),~~ counsel for the ~~Agents, such opinion or opinions~~Agents an opinion, dated the Execution Time, with respect to the issuance and sale of the Notes, the Indenture, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Agents may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to each Agent a certificate of the Company, signed by any of the Chairman of the ~~Board~~ Board, the President, the Chief Financial Officer or any Vice President having responsibilities for financial matters, the Controller or the ~~president and the principal financial or accounting officer~~ Treasurer of the Company, dated the Execution Time, to the effect that the ~~signers~~ signer of such certificate ~~have reviewed~~ has carefully examined the Registration Statement, the Prospectus, any supplement to the Prospectus and this Agreement and that: (i) ~~the~~ The representations and warranties of the Company in this Agreement are true and correct in all material respects ~~on and as of the date hereof with the same effect as if made on the date hereof~~ and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied as a condition to the obligation of the Agents to solicit offers to purchase the Notes;. (ii) no No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company's ’s knowledge, threatened~~; and~~. (iii) (A) The Company has not sustained since the date of the ~~most recent~~ latest audited financial statements included or incorporated by reference in the ~~Prospectus (exclusive of~~ Registration Statement and the Prospectus, any ~~supplement thereto)~~loss or interference with its business from fire, ~~there has been no material adverse change in the condition (financial~~ explosion, flood or ~~other), earnings, business or properties of the Company and its subsidiaries~~other calamity, whether or not ~~arising~~ covered by insurance, or from ~~transactions in~~ any labor dispute or court or governmental action, order or decree, which has had or is reasonably likely to have a material adverse effect on the ~~ordinary course~~ financial position, shareholders’ equity or results of ~~business~~operations of the Company, ~~except~~ otherwise than as set forth in or contemplated in the Registration Statement and the Prospectus and (~~exclusive~~ B) since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any ~~supplement thereto~~change in the capital stock (other than pursuant to any stock purchase, dividend reinvestment, savings, bonus, incentive, or similar plan, conversions of convertible securities into common stock), or long-term debt (other than normal amortization of debt premium and discount, bank or finance company borrowings and repayments in the ordinary course, or additional issuances or repurchases of commercial paper) of the Company or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, shareholders’ equity or results of operations of the Company, otherwise than as set forth or contemplated in the Registration Statement and the Prospectus. (e) At the Execution Time, ~~▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (or such other accountants reasonably satisfactory to~~ the ~~Company and the Agents)~~ Company's independent registered public accounting firm shall have furnished to each Agent a ~~letter or letters (which may refer to letters previously delivered to the Agents)~~letter, dated as of the Execution Time, in form and substance satisfactory to the Agents, ~~confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and~~ stating in effect that: (i) They are an independent registered public accounting firm with respect to the Company within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Commission and the Public Company Accounting Oversight Board (United States) ("PCAOB"). (ii) In their opinion, the consolidated financial statements of the Company audited by them and included in ~~their opinion~~ the ~~audited financial statements~~Company’s Annual Report on Form 10-K for the year ended December 31, ~~financial statement schedules and pro forma financial statements~~[2008], ~~if any, included or~~ which are incorporated by reference in the Registration Statement and the Prospectus ~~and reported on by them~~ comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related ~~published~~ rules and ~~regulations~~regulations adopted by the Commission. (iii) On the basis of procedures (but not an audit in accordance with the standards of the PCAOB) consisting of: (A) reading the minutes of meetings of the stockholders and the Board of Directors of the Company since December 31, [2008], as set forth in the minute books (or, if minutes have not been prepared, agendas for such meetings, if available) through a specified date not more than three business days prior to the date of delivery of such letter; (iiB) ~~on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; the performance of~~ performing the procedures specified by the ~~American Institute of Certified Public Accountants~~ PCAOB for a review of interim financial information as described in SAS ~~No. 71~~100, Interim Financial Information, ~~-----------------------------~~ on the ~~latest~~ unaudited condensed interim financial ~~statements, if any, included or~~ statements of the Company incorporated by reference in the ~~Prospectus; a~~ Registration Statement and the Prospectus (the "Unaudited Statements") and reading the unaudited interim financial data for the period from the date of the ~~minutes~~ latest balance sheet included in the Unaudited Statements to the date of the ~~meetings of the stockholders, directors, audit and finance committees of the Company and its subsidiaries~~latest available interim financial data; ~~and~~ and (C) making inquiries of certain officials of the Company who have responsibility for financial and accounting matters regarding the specific items for which representations are requested in Sections 5(e)(iii)(1) through 5(e)(iii)(3) below, nothing has come to their attention as a result of the Company and its subsidiaries as to transactions and events subsequent to the date of the most recent audited financial statements included or incorporated in the Prospectus (it being understood that the foregoing procedures do not constitute an examination made in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter), nothing came to their attention which that caused them to believe that: (1) ~~any unaudited financial statements included or incorporated by reference in~~ the ~~Registration Statement and the Prospectus~~ Unaudited Statements do not comply ~~as to~~ in form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and with the related ~~published~~ rules and regulations ~~thereunder; and that~~ adopted by the Commission; (2) any material modifications should be made to ~~said unaudited financial statements~~ the Unaudited Statements for them to be in conformity with generally accepted accounting principles;; and (23) ~~with respect to the period subsequent to~~ (i) at the date of the ~~most recent~~ latest available interim financial ~~statements (other than any capsule information), audited or unaudited, included or incorporated in the Registration Statement and the Prospectus~~data, there ~~were~~ was any ~~changes, at a specified date not more than five business days prior to the date of the letter,~~ change in the common ~~stock, preferred stock, current liabilities~~ stock or increase in long-term debt ~~of the Company and its subsidiaries~~ or any decreases in ~~the total common stockholders~~consolidated net current assets (working capital) or shareholders' equity of the Company as compared with the amounts shown on the most recent balance sheet included or incorporated in the Registration Statement and the Prospectus, or for the period from the most recent fiscal year of the Company to the date of the most recent available financial statements (audited or unaudited) of the Company there were any decreases, as compared with the corresponding period in the preceding year in operating revenues, operating income, other income or net income of the Company and its subsidiaries except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Agents; or (3) the amounts included in any unaudited "capsule" information included or incorporated in the Registration Statement and the Prospectus do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated in the Registration Statement and the Prospectus; (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement, including the information included or incorporated in Items 1, 2, 6, 7 and 11 of the Company's Annual Report on Form 10-K, incorporated in the Registration Statement and the Prospectus, and the information included in the "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated in the Company's QuarterlyComp

Appears in 1 contract

Sources: Distribution Agreement (Central Hudson Gas & Electric Corp)

Conditions to the Obligations of the Agents. The ~~obligations~~ obligation of each ~~------------------------------------------- Agent~~ of the Agents to solicit offers to purchase the Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the ~~Execution Time~~date hereof, on as of the ~~Effective Date~~date of the effectiveness of any amendment to the Registration Statement (including the filing of any document incorporated by reference therein), ~~when~~ as of the date any supplement to the Prospectus is filed with the ~~Commission~~ SEC, as of each Acceptance Date and as of each Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); and no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have furnished to ~~each Agent~~ the Agents the opinion of ~~▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ (or such other~~ counsel ~~reasonably satisfactory~~ to ~~the Agents), counsel for~~ the Company, dated the ~~Execution Time~~date hereof, to the effect that: (i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the ~~State~~ state of ~~Alabama~~Missouri, with full corporate power and authority to own its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases ~~material~~ properties or conducts material business and wherein the failure to be so qualified would have a material adverse effect on the business of the Company and the subsidiaries taken as a whole; (ii) each of the Subsidiaries has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own its properties and conduct its business as described in the Prospectus, and Alabama Gas Corporation is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, except where the failure to so qualify ~~does~~ would not have a material adverse effect on the ~~business of the Company and its subsidiaries as a whole~~Company; (iii) all the outstanding shares of capital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances (with the exception of those encumbrances in the Indenture); (iv) the Company's authorized equity capitalization is as set forth in the Prospectus; and the Notes conform to the description thereof contained in the Prospectus (subject to the insertion in the Notes of the maturity dates, the interest rates and other similar terms thereof which will be described in supplements to the Prospectus as contemplated by the fourth sentence of Section 1(a) of this Agreement); (vii) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, ~~fraudulent conveyance,~~ insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or ~~other laws~~ affecting creditors' ~~rights~~ rights, generally from time to time in ~~effect,~~ effect and ~~by the availability~~ to general principles of ~~specific performance or of other equitable relief which is subject to the discretion of the court before which any proceeding may be brought~~equity); the Notes have been duly authorized and ~~up to an aggregate principal amount of $__________~~ established in conformity with the Indenture, and, when the terms of the Notes have been duly ~~authorized and~~established in conformity with the Indenture so as not to violate or conflict with any provisions of law or any agreement or instrument applicable to the Company or any of its properties, when the Notes have been duly executed by the proper officers of the Company, registered and duly authenticated ~~in accordance with the provisions of~~ pursuant to the Indenture and delivered to and paid for by the purchasers thereof, the Notes will constitute legal, valid and binding obligations of the Company entitled to the benefits of the ~~Indenture (other than the indemnity provisions contained in Section 8 hereof or Section 701 of the Indenture as to which such counsel need express no opinion)~~Indenture; (viiii) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, ~~authority or~~ authority, body or any arbitrator involving the ~~Company or any of its subsidiaries~~Company, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated ~~by reference~~ in the Prospectus describing any legal proceedings or material contracts or agreements relating to the Company fairly summarize such matters; (~~vii~~iv) the Registration Statement ~~has~~ and any amendments thereto have become effective under the Securities Act~~; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been or will be made in the manner and within the time period required by Rule 424(b)~~; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been ~~issued and~~ issued, no proceedings for that purpose have been instituted or threatened; , and the Registration ~~Statement and~~ Statement, the Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than the financial statements and other financial and statistical information contained therein as to which such counsel need express no opinion) ~~comply~~ complied as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Trust Indenture Act and the respective rules and regulations thereunder; and such counsel has no reason to believe that the Registration ~~Statement~~ Statement, or any amendment thereof, at the ~~Effective Date~~ time it became effective or at the ~~Execution Time~~ date of this Agreement, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the ~~Prospectus includes~~ Prospectus, at its issue date or at the date of this Agreement, included any untrue statement of a material fact or ~~omits~~ omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (~~viii~~v) this Agreement has been duly authorized, executed and delivered by the Company; (ixvi) no order, consent, approval, ~~authorization~~ authorization, registration or ~~order~~ qualification of or with any ~~court or~~ governmental agency or body having jurisdiction over the Company or any of its properties is required for the issue and sale of the Notes or the consummation by the Company of the transactions contemplated ~~herein~~ by this Agreement or the Indenture, except such as have been, or will have been prior to the Closing Date, obtained under the Securities Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under ~~the blue sky~~ state securities or Blue Sky laws ~~of any jurisdiction~~ in connection with the sale and distribution of the ~~Notes as contemplated by this Agreement and such other approvals (specified in such opinion) as have been obtained;~~Notes; and (xvii) neither the execution and delivery of the ~~Indenture~~Indenture or this Agreement, the issue and sale ~~up to an aggregate principal amount of $__________~~ of the ~~Notes~~Notes (when the terms of the Notes have been duly established in conformity with the Indenture so as not to violate or conflict with any provisions of law or any agreement or instrument applicable to the Company or any of its properties and when the Notes have been duly executed by the proper officers of the Company, registered and duly authenticated pursuant to the Indenture and delivered to and paid for by the purchasers thereof), nor the consummation of any other of the transactions herein or therein contemplated nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach ~~or violation~~ of, or constitute a default ~~under any law or~~ under, the charter or by-laws of the Company or the terms of any indenture or other agreement or instrument known to such counsel and to which the Company is a party or by which the Company or any of its ~~Subsidiaries~~ assets is ~~a party or bound~~ bound, or any ~~judgment, order,~~ order or regulation ~~or decree~~ known to such counsel to be applicable to the Company ~~or any of its Subsidiaries~~ of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the ~~Company or any of its Subsidiaries; (xi)~~ Company. In rendering such opinion, such counsel may rely, as to the ~~knowledge of such counsel no holders of securities~~ execution of the ~~Company have rights to~~ Indenture by the ~~registration of such securities under the Registration Statement; (xii) the information contained in the Prospectus under the caption "Certain Tax Considerations" is~~ Trustee, upon a ~~fair and accurate summary~~ certificate of the ~~principal Federal income tax consequences associated with~~ Trustee setting forth the ~~ownership of the Notes; and (xiii) the Company is exempt from all provisions of the 1935 Act except Section 9(a)(2) thereof~~facts as to such execution. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the ~~State~~ state of ~~Alabama~~ Missouri or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to ~~counsel for~~ the ~~Agent~~ Agents and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials. ~~References to the Prospectus in this paragraph (b) include any supplements thereto at the date~~ In rendering such opinion ~~is rendered~~with respect to clause (vi) above, insofar as it relates to regulatory authorities in the states in which the Company operates, such counsel may rely on the opinions of local counsel satisfactory to such counsel. (c) ~~Each Agent~~ The Agents shall have received from ~~Winthrop~~Sullivan & Cromwell, ~~▇▇▇▇▇▇▇, ▇▇~~cou▇▇▇▇ ~~& ▇▇▇▇~~▇▇▇ ~~(or such other counsel reasonably satisfactory to the Company and the Agents), counsel for~~ the Agents, such opinion or opinions, dated the ~~Execution Time~~date hereof, with respect to the issuance and sale of the Notes, the Indenture, the Registration Statement, the Prospectus ~~(together with any supplement thereto)~~ and other related matters as the Agents may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to ~~each Agent~~ the Agents a certificate ~~of the Company,~~ signed by ~~the~~ its Chairman of the Board or ~~the president~~ its President or a Vice President and ~~the principal financial~~ its Treasurer or ~~accounting officer of the Company, dated the Execution Time,~~ an Assistant Treasurer stating that after reasonable investigation and to the ~~effect that the signers~~ best of ~~such certificate have reviewed the Registration Statement, the Prospectus, any supplement to the Prospectus and this Agreement and that~~their knowledge: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the date hereof with the same effect as if made on the date ~~hereof and~~ hereof; the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied as a condition to the obligation of the Agents to solicit offers to purchase the Notes; and the conditions set forth in Paragraph 5(a) have been fulfilled; (ii) ~~no stop order suspending~~ as of the ~~effectiveness~~ date of the Prospectus, the Registration Statement ~~has been issued~~ and ~~no proceedings for that purpose have been instituted or,~~ the Prospectus did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the ~~Company's knowledge, threatened~~statements therein not misleading; and (iii) since the date of the most recent financial statements included or incorporated by reference in the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus, there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus. (e) At The Company shall have furnished to the ~~Execution Time,~~ Agents (i) a letter of Ernst & Young ▇▇▇~~▇▇▇▇ & ▇▇▇▇▇▇▇ (or such other accountants reasonably satisfactory~~ , addressed to the Board of Directors of the Company and the ~~Agents) shall have furnished to each Agent a letter or letters (which may refer to letters previously delivered to~~ Agents and dated the ~~Agents), dated as~~ later of the ~~Execution Time, in form and substance satisfactory to the Agents, confirming that they are independent accountants within the meaning~~ effective date of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and stating in effect that: (i) in their opinion the audited financial statements, financial statement schedules and pro forma financial statements, if any, included or incorporated by reference in the Registration Statement ~~and~~ or the ~~Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements~~ date of the ~~Act and the Exchange Act and the related published rules and regulations; (ii) on the basis of a reading~~ filing of the Company's latest ~~unaudited financial statements made available by the Company and its subsidiaries; the performance~~ Annual Report on Form 10-K, of the ~~procedures specified by~~ type described in the American Institute of Certified Public ~~Accountants for~~ Accountants' Statement on Auditing Standards No. 72 ("SAS 72") and covering such financial statement items of the Company as the Agents may reasonably have requested; (ii) a ~~review~~ letter of ~~interim~~ Ernst & Young LLP, addre▇▇▇▇ to the Agents and dated the date hereof, stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information ~~as described in SAS No. 71, Interim Financial Information, ----------------------------- on the latest unaudited financial statements, if any, included or incorporated by reference~~ is given in the Prospectus; , as of a ~~reading~~ date not more than five business days prior to the date of such letter), the ~~minutes~~ conclusions and findings of such firm with respect to the ~~meetings of the stockholders, directors, audit~~ financial information and ~~finance committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting~~ other matters of the Company covered by its letter referred to in subclause (i) above and ~~its subsidiaries as to transactions~~ confirming in all material respects the conclusions and ~~events subsequent to~~ findings set forth in such prior letter; and (iii) a letter, dated the date hereof, of ~~the most recent~~ any other accountants that have audited financial statements included or incorporated in the Prospectus (it being understood that the foregoing procedures do not constitute an examination made in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter), nothing came to their attention which caused them to believe that: (1) any unaudited financial statements included or incorporated by reference in the Registration Statement and Prospectus, addressed to the ~~Prospectus do not comply as to form in all material respects with the applicable accounting requirements~~ Agents, of the ~~Exchange Act~~ type described in SAS 72 and covering such financial statement items as the ~~related published rules and regulations thereunder; and that any material modifications should be made~~ Agents may reasonably request. References to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; (2) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated in the Registration Statement and the ~~Prospectus, there were any changes,~~ Prospectus in this paragraph (e) are to such documents as amended and supplemented at ~~a specified date not more than five business days prior to~~ the date of the letter, in the common stock, preferred stock, current liabilities or long-term debt of the Company and its subsidiaries or decreases in the total common stockholders' equity of the Company as compared with the amounts shown on the most recent balance sheet included or incorporated in the Registration Statement and the Prospectus, or for the period from the most recent fiscal year of the Company . (f) Subsequent to the ~~date~~ respective dates as of the most recent available financial statements (audited or unaudited) of the Company there were any decreases, as compared with the corresponding period in the preceding year in operating revenues, operating income, other income or net income of the Company and its subsidiaries except in all instances for changes or decreases set forth in such letter, in which ~~case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation~~ information is ~~not deemed necessary by the Agents; or (3) the amounts included in any unaudited "capsule" information included or incorporated~~ given in the Registration Statement and the Prospectus ~~do not agree~~ (with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated in the Registration Statement and the Prospectus; (iiirespect to Section 6(c) ~~they have performed certain other specified procedures~~ hereof, only as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Prospectus ~~and in Exhibit 12 to~~ are amended or supplemented through the ~~Registration Statement, including the information included or incorporated in Items 1, 2, 6, 7 and 11~~ date of the ~~Company's Annual Report on Form 10-K~~Terms Agreement) there shall not have been any change, ~~incorporated~~ or any development involving a prospective change, in or affecting the business or properties of the Company and its principal subsidiaries the effect of which is, in the reasonable judgment of the Agents, so material and adverse as to make it impractical or inadvisable to proceed with the soliciting of offers to purchase the Notes as contemplated by the Registration Statement and the ~~Prospectus~~Prospectus (or, ~~and the information included~~ in the ~~"Management's Discussion~~ case of a Terms Agreement, to proceed with the offering or the delivery of the Notes to be purchased as contemplated by the Terms Agreement). (g) Prior to the date hereof, the Company shall have furnished to the Agents such further information, certificates and ~~Analysis~~ documents as the Agents may reasonably request. If any of ~~Financial Condition~~ the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and ~~Results~~ as provided in this Agreement, or if any of ~~Operations" included~~ the opinions and certificates mentioned above or ~~incorporated~~ elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the ~~Company's Quarterly~~Agents, this Agreement and all obligations of the Agents hereunder may be canceled at any time by the Agents. Notice of such cancellation shall be given to the Company in writing or by telephone or telegraph confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of Sullivan & Cromwell, cou▇▇▇▇ ▇▇▇ th▇ ▇▇▇▇▇▇, at 125 Broad Street, N▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as the parties hereto agree, on the date hereof.

Appears in 1 contract

Sources: Selling Agency Agreement (Southwestern Bell Telephone Co)

Conditions to the Obligations of the Agents. The ~~obligations~~ obligation of each ~~------------------------------------------- Agent~~ of the Agents to solicit offers to purchase the Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the ~~Execution Time~~date hereof, on as of the ~~Effective Date~~date of the effectiveness of any amendment to the Registration Statement (including the filing of any document incorporated by reference therein), ~~when~~ as of the date any supplement to the Prospectus is filed with the ~~Commission~~ SEC, as of each Acceptance Date and as of each Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); and no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have furnished to ~~each Agent~~ the Agents the opinion of ~~▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ (or such other~~ counsel ~~reasonably satisfactory~~ to ~~the Agents), counsel for~~ the Company, dated the ~~Execution Time~~date hereof, to the effect that: (i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the ~~State~~ state of ~~Alabama~~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 do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases ~~material~~ properties or conducts material business and wherein the failure to be so qualified would have a material adverse effect on the business of the Company and the subsidiaries taken as a whole; (ii) each of the Subsidiaries has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own its properties and conduct its business as described in the Prospectus, and Alabama Gas Corporation is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, except where the failure to so qualify ~~does~~ would not have a material adverse effect on the ~~business of the Company and its subsidiaries as a whole~~Company; (iii) all the outstanding shares of capital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances (with the exception of those encumbrances in the Indenture); (iv) the Company's authorized equity capitalization is as set forth in the Prospectus; and the Notes conform to the description thereof contained in the Prospectus (subject to the insertion in the Notes of the maturity dates, the interest rates and other similar terms thereof which will be described in supplements to the Prospectus as contemplated by the fourth sentence of Section 1(a) of this Agreement); (vii) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, ~~fraudulent conveyance,~~ insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or ~~other laws~~ affecting creditors' ~~rights~~ rights, generally from time to time in ~~effect,~~ effect and ~~by the availability~~ to general principles of ~~specific performance or of other equitable relief which is subject to the discretion of the court before which any proceeding may be brought~~equity); the Notes have been duly authorized and ~~up to an aggregate principal amount of $__________~~ established in conformity with the Indenture, and, when the terms of the Notes have been duly ~~authorized and~~established in conformity with the Indenture so as not to violate or conflict with any provisions of law or any agreement or instrument applicable to the Company or any of its properties, when the Notes have been duly executed by the proper officers of the Company, registered and duly authenticated ~~in accordance with the provisions of~~ pursuant to the Indenture and delivered to and paid for by the purchasers thereof, the Notes will constitute legal, valid and binding obligations of the Company entitled to the benefits of the ~~Indenture (other than the indemnity provisions contained in Section 8 hereof or Section 701 of the Indenture as to which such counsel need express no opinion)~~Indenture; (viiii) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, ~~authority or~~ authority, body or any arbitrator involving the ~~Company or any of its subsidiaries~~Company, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated ~~by reference~~ in the Prospectus describing any legal proceedings or material contracts or agreements relating to the Company fairly summarize such matters; (~~vii~~iv) the Registration Statement ~~has~~ and any amendments thereto have become effective under the Securities Act~~; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been or will be made in the manner and within the time period required by Rule 424(b)~~; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been ~~issued and~~ issued, no proceedings for that purpose have been instituted or threatened; , and the Registration ~~Statement and~~ Statement, the Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than the financial statements and other financial and statistical information contained therein as to which such counsel need express no opinion) ~~comply~~ complied as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Trust Indenture Act and the respective rules and regulations thereunder; and such counsel has no reason to believe that the Registration ~~Statement~~ Statement, or any amendment thereof, at the ~~Effective Date~~ time it became effective or at the ~~Execution Time~~ date of this Agreement, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the ~~Prospectus includes~~ Prospectus, at its issue date or at the date of this Agreement, included any untrue statement of a material fact or ~~omits~~ omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (~~viii~~v) this Agreement has been duly authorized, executed and delivered by the Company; (ixvi) no order, consent, approval, ~~authorization~~ authorization, registration or ~~order~~ qualification of or with any ~~court or~~ governmental agency or body having jurisdiction over the Company or any of its properties is required for the issue and sale of the Notes or the consummation by the Company of the transactions contemplated ~~herein~~ by this Agreement or the Indenture, except such as have been, or will have been prior to the Closing Date, obtained under the Securities Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under ~~the blue sky~~ state securities or Blue Sky laws ~~of any jurisdiction~~ in connection with the sale and distribution of the ~~Notes as contemplated by this Agreement and such other approvals (specified in such opinion) as have been obtained;~~Notes; and (xvii) neither the execution and delivery of the ~~Indenture~~Indenture or this Agreement, the issue and sale ~~up to an aggregate principal amount of $__________~~ of the ~~Notes~~Notes (when the terms of the Notes have been duly established in conformity with the Indenture so as not to violate or conflict with any provisions of law or any agreement or instrument applicable to the Company or any of its properties and when the Notes have been duly executed by the proper officers of the Company, registered and duly authenticated pursuant to the Indenture and delivered to and paid for by the purchasers thereof), nor the consummation of any other of the transactions herein or therein contemplated nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach ~~or violation~~ of, or constitute a default ~~under any law or~~ under, the charter or by-laws of the Company or the terms of any indenture or other agreement or instrument known to such counsel and to which the Company is a party or by which the Company or any of its ~~Subsidiaries~~ assets is ~~a party or bound~~ bound, or any ~~judgment, order,~~ order or regulation ~~or decree~~ known to such counsel to be applicable to the Company ~~or any of its Subsidiaries~~ of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the ~~Company or any of its Subsidiaries; (xi)~~ Company. In rendering such opinion, such counsel may rely, as to the ~~knowledge of such counsel no holders of securities~~ execution of the ~~Company have rights to~~ Indenture by the ~~registration of such securities under the Registration Statement; (xii) the information contained in the Prospectus under the caption "Certain Tax Considerations" is~~ Trustee, upon a ~~fair and accurate summary~~ certificate of the ~~principal Federal income tax consequences associated with~~ Trustee setting forth the ~~ownership of the Notes; and (xiii) the Company is exempt from all provisions of the 1935 Act except Section 9(a)(2) thereof~~facts as to such execution. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the ~~State~~ state of ~~Alabama~~ California or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to ~~counsel for~~ the ~~Agent~~ Agents and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials. ~~References to the Prospectus in this paragraph (b) include any supplements thereto at the date~~ In rendering such opinion ~~is rendered~~with respect to clause (vi) above, insofar as it relates to regulatory authorities in the states in which the Company operates, such counsel may rely on the opinions of local counsel satisfactory to such counsel. (c) ~~Each Agent~~ The Agents shall have received from ~~Winthrop,~~ ▇▇~~▇▇▇▇▇,~~ ▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇ (or such other counsel reasonably satisfactory to the Company and the Agents)~~▇▇, counsel for the Agents, such opinion or opinions, dated the ~~Execution Time~~date hereof, with respect to the issuance and sale of the Notes, the Indenture, the Registration Statement, the Prospectus ~~(together with any supplement thereto)~~ and other related matters as the Agents may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to ~~each Agent~~ the Agents a certificate ~~of the Company,~~ signed by ~~the~~ its Chairman of the Board or ~~the president~~ its President or a Vice President and ~~the principal financial~~ its Treasurer or ~~accounting officer of the Company, dated the Execution Time,~~ an Assistant Treasurer stating that after reasonable investigation and to the ~~effect that the signers~~ best of ~~such certificate have reviewed the Registration Statement, the Prospectus, any supplement to the Prospectus and this Agreement and that~~their knowledge: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the date hereof with the same effect as if made on the date ~~hereof and~~ hereof; the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied as a condition to the obligation of the Agents to solicit offers to purchase the Notes; and the conditions set forth in Paragraph 5(a) have been fulfilled; (ii) ~~no stop order suspending~~ as of the ~~effectiveness~~ date of the Prospectus, the Registration Statement ~~has been issued~~ and ~~no proceedings for that purpose have been instituted or,~~ the Prospectus did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the ~~Company's knowledge, threatened~~statements therein not misleading; and (iii) since the date of the most recent financial statements included or incorporated by reference in the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus, there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus. (e) At The Company shall have furnished to the ~~Execution Time~~Agents (i) a letter of ▇▇▇▇▇ & Young LLP, addressed to the Board of Directors of the Company and the Agents and dated the later of the effective date of the Registration Statement or the date of the filing of the Company's latest Annual Report on Form 10-K, of the type described in the American Institute of Certified Public Accountants' Statement on Auditing Standards No. 72 ("SAS 72") and covering such financial statement items of the Company as the Agents may reasonably have requested; (ii) a letter of ▇▇▇▇▇ & Young LLP, addressed to the Agents and dated the date hereof, stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five business days prior to the date of such letter), the conclusions and findings of such firm with respect to the financial information and other matters of the Company covered by its letter referred to in subclause (i) above and confirming in all material respects the conclusions and findings set forth in such prior letter; and (iii) a letter, dated the date hereof, of any other accountants that have audited financial statements included or incorporated by reference in the Registration Statement and Prospectus, addressed to the Agents, of the type described in SAS 72 and covering such financial statement items as the Agents may reasonably request. References to the Registration Statement and the Prospectus in this paragraph (e) are to such documents as amended and supplemented at the date of the letter. (f) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus (with respect to Section 6(c) hereof, only as the Registration Statement and the Prospectus are amended or supplemented through the date of the Terms Agreement) there shall not have been any change, or any development involving a prospective change, in or affecting the business or properties of the Company and its principal subsidiaries the effect of which is, in the reasonable judgment of the Agents, so material and adverse as to make it impractical or inadvisable to proceed with the soliciting of offers to purchase the Notes as contemplated by the Registration Statement and the Prospectus (or, in the case of a Terms Agreement, to proceed with the offering or the delivery of the Notes to be purchased as contemplated by the Terms Agreement). (g) Prior to the date hereof, the Company shall have furnished to the Agents such further information, certificates and documents as the Agents may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Agents, this Agreement and all obligations of the Agents hereunder may be canceled at any time by the Agents. Notice of such cancellation shall be given to the Company in writing or by telephone or telegraph confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Agents, at ▇▇▇ (▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or such other ~~accountants reasonably satisfactory to~~ location as the ~~Company and the Agents) shall have furnished to each Agent a letter or letters (which may refer to letters previously delivered to the Agents)~~parties hereto agree, dated as of the Execution Time, in form and substance satisfactory to the Agents, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and stating in effect that: (i) in their opinion the audited financial statements, financial statement schedules and pro forma financial statements, if any, included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations; (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; the performance of the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in SAS No. 71, Interim Financial Information, ----------------------------- on the latest unaudited financial statements, if any, included or incorporated by reference in the Prospectus; a reading of the minutes of the meetings of the stockholders, directors, audit and finance committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to the date of the most recent audited financial statements included or incorporated in the Prospectus (it being understood that the foregoing procedures do not constitute an examination made in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter), nothing came to their attention which caused them to believe that: (1) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; and that any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; (2) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated in the Registration Statement and the Prospectus, there were any changes, at a specified date not more than five business days prior to the date of the letter, in the common stock, preferred stock, current liabilities or long-term debt of the Company and its subsidiaries or decreases in the total common stockholders' equity of the Company as compared with the amounts shown on the most recent balance sheet included or incorporated in the Registration Statement and the Prospectus, or for the period from the most recent fiscal year of the Company to the date of the most recent available financial statements (audited or unaudited) of the Company there were any decreases, as compared with the corresponding period in the preceding year in operating revenues, operating income, other income or net income of the Company and its subsidiaries except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Agents; or (3) the amounts included in any unaudited "capsule" information included or incorporated in the Registration Statement and the Prospectus do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated in the Registration Statement and the Prospectus; (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement, including the information included or incorporated in Items 1, 2, 6, 7 and 11 of the Company's Annual Report on Form 10-K, incorporated in the Registration Statement and the Prospectus, and the information included in the "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated in the Company's Quarterlyhereof.

Appears in 1 contract

Sources: Selling Agency Agreement (Pacific Bell)

Conditions to the Obligations of the Agents. The obligations of each ~~-------------------------------------------~~ Agent to solicit offers to purchase the Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, on the Effective Date, when any supplement to the Prospectus is filed with the Commission and as of each Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement as amended shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have furnished to each Agent the opinion of ~~▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ (~~either the General Counsel or ~~such other counsel reasonably satisfactory to the Agents), counsel~~ any Associate or Assistant General Counsel for the Company, dated the ~~Execution Time~~date hereof, to the effect that: (i) the Company ~~has been~~ is a corporation duly ~~incorporated and is~~ incorporated, validly existing ~~as a corporation~~ and in good standing under the laws of the State of ~~Alabama~~Ohio, with full corporate power and authority to own its properties and conduct ~~its~~ the business now being conducted by it as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing ~~under the laws of~~ in each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business and wherein the failure to be so qualified would have a material adverse effect on the business of the Company and the subsidiaries taken as a whole; (ii) each of the Subsidiaries has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own its properties and conduct its business as described in the Prospectus, and Alabama Gas Corporation is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, except where the failure to so qualify ~~does~~ would not have a material adverse effect on the financial condition, or the earnings, business affairs or business prospects of the Company and its ~~subsidiaries~~ Subsidiaries taken as a whole; and the Company is in good standing in the State of California and the Commonwealth of Virginia; (iii) all the outstanding shares of capital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances (with the exception of those encumbrances in the Indenture); (ivii) the Company's authorized equity capitalization is as set forth in the Prospectus; and the Notes conform to the description thereof contained in the Prospectus (subject to the insertion in the Notes of the maturity dates, the interest rates and other similar terms thereof which will be described in supplements to the Prospectus as contemplated by the fourth sentence of Section 1(a) of this Agreement); (viii) (if the ~~Indenture~~ Company has one or more Significant Subsidiaries at the date of such opinion) each Significant Subsidiary of the Company has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, fraudulent conveyance, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect, and by the availability of specific performance or of other equitable relief which is subject to the discretion of the court before which any proceeding may be brought); and up to an aggregate principal amount of $__________ of the Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the purchasers thereof, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture (other than the indemnity provisions contained in Section 8 hereof or Section 701 of the Indenture as to which such counsel need express no opinion); (vi) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated by reference in the Prospectus describing material contracts or agreements relating to the Company fairly summarize such matters; (vii) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been or will be made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened; and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; and such counsel has no reason to believe that the Registration Statement at the Effective Date or at the Execution Time 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 includes any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (viii) this Agreement has been duly authorized, executed and delivered by the Company; (ix) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated herein except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the sale of the Notes as contemplated by this Agreement and such other approvals (specified in such opinion) as have been obtained; (x) neither the execution and delivery of the Indenture, the issue and sale up to an aggregate principal amount of $__________ of the Notes, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or by-laws of the Company or the terms of any indenture or other agreement or instrument known to such counsel and to which the Company or any of its Subsidiaries is a party or bound or any judgment, order, regulation or decree known to such counsel to be applicable to the Company or any of its Subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any of its Subsidiaries; (xi) to the knowledge of such counsel no holders of securities of the Company have rights to the registration of such securities under the Registration Statement; (xii) the information contained in the Prospectus under the caption "Certain Tax Considerations" is a fair and accurate summary of the principal Federal income tax consequences associated with the ownership of the Notes; and (xiii) the Company is exempt from all provisions of the 1935 Act except Section 9(a)(2) thereof. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Alabama or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Agent and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the date such opinion is rendered. (c) Each Agent shall have received from Winthrop, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (or such other counsel reasonably satisfactory to the Company and the Agents), counsel for the Agents, such opinion or opinions, dated the Execution Time, with respect to the issuance and sale of the Notes, the Indenture, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Agents may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to each Agent a certificate of the Company, signed by the Chairman of the Board or the president and the principal financial or accounting officer of the Company, dated the Execution Time, to the effect that the signers of such certificate have reviewed the Registration Statement, the Prospectus, any supplement to the Prospectus and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the date hereof with the same effect as if made on the date hereof and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied as a condition to the obligation of the Agents to solicit offers to purchase the Notes; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto). (e) At the Execution Time, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (or such other accountants reasonably satisfactory to the Company and the Agents) shall have furnished to each Agent a letter or letters (which may refer to letters previously delivered to the Agents), dated as of the Execution Time, in form and substance satisfactory to the Agents, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and stating in effect that: (i) in their opinion the audited financial statements, financial statement schedules and pro forma financial statements, if any, included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations; (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; the performance of the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in SAS No. 71, Interim Financial Information, ----------------------------- on the latest unaudited financial statements, if any, included or incorporated by reference in the Prospectus; a reading of the minutes of the meetings of the stockholders, directors, audit and finance committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to the date of the most recent audited financial statements included or incorporated in the Prospectus (it being understood that the foregoing procedures do not constitute an examination made in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter), nothing came to their attention which caused them to believe that: (1) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; and that any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; (2) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated in the Registration Statement and the Prospectus, there were any changes, at a specified date not more than five business days prior to the date of the letter, in the common stock, preferred stock, current liabilities or long-term debt of the Company and its subsidiaries or decreases in the total common stockholders' equity of the Company as compared with the amounts shown on the most recent balance sheet included or incorporated in the Registration Statement and the Prospectus, or for the period from the most recent fiscal year of the Company to the date of the most recent available financial statements (audited or unaudited) of the Company there were any decreases, as compared with the corresponding period in the preceding year in operating revenues, operating income, other income or net income of the Company and its subsidiaries except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Agents; or (3) the amounts included in any unaudited "capsule" information included or incorporated in the Registration Statement and the Prospectus do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated in the Registration Statement and the Prospectus; (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement, including the information included or incorporated in Items 1, 2, 6, 7 and 11 of the Company's Annual Report on Form 10-K, incorporated in the Registration Statement and the Prospectus, and the information included in the "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated in the Company's Quarterlyincorporated

Appears in 1 contract

Sources: Distribution Agreement (TRW Inc)

Conditions to the Obligations of the Agents. The obligations of each ~~-------------------------------------------~~ Agent to solicit offers to purchase the Notes shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, on the Effective ~~Date,~~ Date and when any supplement to the Prospectus is filed with the ~~Commission and as of each Closing Date~~Commission, to (ii) the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to (iii) the performance by the Company of its obligations hereunder and to (iv) the following additional conditions: (a) If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule ~~424(b)~~424, the Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule ~~424(b)~~424; and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have furnished to each Agent the opinion of B▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ~~▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ (or such other counsel reasonably satisfactory to the Agents)~~Esq., counsel for the Company, dated the Execution Time, to the effect that: (i) ~~the~~ The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the ~~State~~ jurisdiction of ~~Alabama~~its incorporation, with ~~full corporate~~ power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus, as amended or supplemented, and is duly qualified to do business ~~as a foreign corporation and is~~ in ~~good standing under the laws of~~ each jurisdiction in which ~~requires such qualification wherein~~ it owns or leases ~~material properties~~ real property or ~~conducts material~~ in which the conduct of its business ~~and wherein~~ requires such qualification except where the failure to be so ~~qualified~~ qualified, considering all such cases in the aggregate, does not involve a material risk to the business, properties, financial position or results of operations of the Company. (ii) To the best of such counsel’s knowledge and other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending to which the Company is a party or of which any property of the Company is the subject which, if determined adversely to the Company, would individually or in the aggregate have a material adverse effect on the ~~business~~ financial position, stockholders’ equity or results of operations of the ~~Company and~~ Company; and, to the ~~subsidiaries taken as a whole; (ii) each~~ best of ~~the Subsidiaries has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered~~ such counsel’s knowledge, no such proceedings are threatened or organized, with full corporate power and authority to own its properties and conduct its business as described in the Prospectus, and Alabama Gas Corporation is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns contemplated by governmental authorities or ~~leases material properties or conducts material business, except where the failure to so qualify does not have a material adverse effect on the business of the Company and its subsidiaries as a whole;~~threatened by others. (iii) all the outstanding shares of capital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances (with the exception of those encumbrances in the Indenture); (iv) the Company's authorized equity capitalization is as set forth in the Prospectus; and the Notes conform to the description thereof contained in the Prospectus (subject to the insertion in the Notes of the maturity dates, the interest rates and other similar terms thereof which will be described in supplements to the Prospectus as contemplated by the fourth sentence of Section 1(a) of this Agreement); (v) the Indenture This Agreement has been duly authorized, executed and ~~delivered~~delivered by the Company. (iv) The creation, issuance and sale of the Notes has been duly ~~qualified under the Trust Indenture Act,~~ and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, fraudulent conveyance, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect, and by the availability of specific performance or of other equitable relief which is subject to the discretion of the court before which any proceeding may be brought); and up to an aggregate principal amount of $__________ of the Notes have been duly validly authorized and, when issued within the limitations set forth in the orders from the Public Service Commission of the District of Columbia and the State Corporation Commission of Virginia referred to in paragraph (vii) below and executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the purchasers ~~thereof~~thereof in accordance with this Agreement, the Notes will constitute ~~legal,~~ valid and legally binding obligations of the Company entitled to the ~~benefits of~~ benefit provided by the Indenture; and the Notes and the Indenture conform to the descriptions thereof in the Prospectus. (v) The Indenture has been duly authorized, executed and delivered by the parties thereto and constitutes a valid and legally binding instrument, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization and other ~~than the indemnity provisions contained in Section 8 hereof~~ laws of general applicability relating to or ~~Section 701 of~~ affecting creditors’ rights and to general equity principles; and the Indenture ~~as to which such counsel need express no opinion);~~has been duly qualified under the Trust Indenture Act. (vi) The issue and sale of the Notes and the compliance by the Company with all of the provisions of the Notes, the Indenture and this Agreement and the consummation of the transactions therein and herein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the ~~knowledge~~ Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such ~~counsel~~action result in any violation of the provisions of the Company’s Charter, ~~there is no pending~~ as amended, or ~~threatened action~~Bylaws or any statute or any order, ~~suit~~ rule or ~~proceeding before~~ regulation known to such counsel of any court or governmental ~~agency, authority~~ agency or body ~~or any arbitrator involving~~ having jurisdiction over the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated by reference in the Prospectus describing material contracts or agreements relating to the Company fairly summarize such matters;properties. (vii) No consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body having jurisdiction over the ~~Registration Statement has become effective~~ Company or any of its properties, including, without limitation, the Commission under the ~~Act; any~~ Public Utility Holding Company Act of 1935, is required ~~filing~~ for the issue and sale of the ~~Prospectus~~Notes or the consummation by the Company of the other transactions contemplated by this Agreement or the Indenture, except such as have been obtained under the Act and the Trust Indenture Act, and ~~any supplements thereto, pursuant to Rule 424(b) has been or will be made in~~ except for filings with and the ~~manner and within~~ orders from the ~~time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness~~ Public Service Commission of the ~~Registration Statement has been issued~~ District of Columbia and ~~no proceedings for that purpose~~ the State Corporation Commission of Virginia authorizing the issuance and sale by the Company of the Notes, both of which orders have been ~~instituted or threatened;~~ obtained and ~~the~~ are in full force and effect. (viii) Each Registration Statement and the Prospectus (~~other than~~ except as to the financial statements and other financial ~~and statistical information~~ data contained or incorporated by reference therein as to which such counsel need express no opinion) comply as to form in all material respects with ~~the~~ all applicable requirements of the Act, the Exchange Act and the ~~Trust Indenture Act~~ applicable instructions, rules and regulations of the ~~respective rules~~ Commission thereunder; each Registration Statement has become effective under the Act, and, to the best knowledge of such counsel, no proceedings for a stop order with respect thereto have been instituted or are pending or threatened under Section 8 of the Act; and such counsel has no reason to believe that ~~the~~ each Registration ~~Statement~~ Statement, at ~~the~~ its Effective ~~Date or at the Execution Time~~ Date, contained ~~any~~ an untrue statement of a material fact or omitted 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~~ Prospectus, as of the date of such opinion, includes ~~any~~ an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading~~; (viii) this Agreement has been duly authorized, executed and delivered by the Company;~~. (ix) ~~no consent, approval, authorization or order~~ The Company is a subsidiary of ~~any court or governmental agency or body is required for~~ a public utility holding company registered under the ~~consummation~~ Public Utility Holding Company Act of 1935. The Company’s gas distribution activities are exempt from the Natural Gas Act. (x) The Public Service Commission of the ~~transactions contemplated herein except such as~~ District of Columbia and the State Corporation Commission of Virginia have ~~been obtained under~~ issued appropriate orders with respect to the ~~Act~~ issuance and ~~such as may be required under the blue sky laws of any jurisdiction in connection with the~~ sale of the Notes ~~as contemplated by~~ in accordance with this Agreement; such orders are still in full force and effect; the issuance and sale of the Notes in accordance with this Agreement and such other approvals (specified in such opinion) as have been obtained; (x) neither the execution and delivery of the Indenture, the issue and sale up to an aggregate principal amount of $__________ of the Notes, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or by-laws of the Company or conform with the terms of ~~any indenture or other agreement or instrument known to~~ such counsel and to which the Company or any of its Subsidiaries is a party or bound or any judgment, order, regulation or decree known to such counsel to be applicable to the Company or any of its Subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any of its Subsidiaries; (xi) to the knowledge of such counsel no holders of securities of the Company have rights to the registration of such securities under the Registration Statement; (xii) the information contained in the Prospectus under the caption "Certain Tax Considerations" is a fair and accurate summary of the principal Federal income tax consequences associated with the ownership of the Notes; and (xiii) the Company is exempt from all provisions of the 1935 Act except Section 9(a)(2) thereof. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Alabama or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Agent and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the date such opinion is renderedorders. (c) Each Agent shall have received from ~~Winthrop,~~ Hunton & W▇▇▇▇▇▇▇, ~~▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (or such other counsel reasonably satisfactory to the Company and the Agents),~~ counsel for the Agents, ~~such opinion or opinions~~an opinion, dated the Execution Time, with respect to the issuance and sale of the Notes, the Indenture, the Registration ~~Statement~~Statements, the Prospectus (together with any supplement thereto) and other related matters as the Agents may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to each Agent a certificate of the Company, signed by any of the Chairman of the ~~Board~~ Board, the President, the Chief Executive Officer, any Vice President having responsibilities for financial matters, the Chief Accounting Officer or the ~~president and the principal financial or accounting officer~~ Treasurer of the Company, dated the Execution Time, to the effect that the ~~signers~~ signer of such certificate ~~have reviewed the~~ has carefully examined each Registration Statement, the Prospectus, any supplement to the Prospectus and this Agreement and that: (i) ~~the~~ The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the date ~~hereof~~ of such certificate with the same effect as if made on at the ~~date hereof~~ Execution Time and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied as a condition to the obligation of the Agents to solicit offers to purchase the Notes;. (ii) no No stop order suspending the effectiveness of ~~the~~ any Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company's ’s knowledge, threatened~~; and~~. (~~iii~~1) ~~since~~ Since the date of the ~~most recent~~ latest audited financial statements included or incorporated by reference in Registration Statement No. 333-104574 and the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus, there has not been no any material ~~adverse~~ loss or interference with the Company’s business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in Registration Statement No. 333-104574 and the Prospectus and (2) since the respective dates as of which information is given in Registration Statement No. 333-104574 and the Prospectus, there has not been any change in the ~~condition~~ capital stock or long-term debt (other than normal amortization of debt premium and discount) of the Company or any material change, or any development involving a prospective material change, in or affecting the general affairs, management, financial ~~or other)~~position, ~~earnings~~stockholders’ equity, ~~business~~ results of operations or properties of the ~~Company and its subsidiaries~~Company, ~~whether or not arising from transactions in the ordinary course of business, except~~ otherwise than as set forth in or contemplated in Registration Statement No. 333-104574 and the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus. (e) At the Execution Time, ~~▇▇▇▇▇▇▇~~ Deloitte & ~~▇▇▇▇▇▇▇ (or such other accountants reasonably satisfactory to the Company and the Agents)~~ Touche LLP shall have furnished to each Agent a ~~letter or letters (which may refer to letters previously delivered to the Agents)~~letter, dated as of the Execution Time, in form and substance satisfactory to the Agents, confirming that they are independent certified public accountants within the meaning of the Act and the ~~Exchange Act and the respective~~ applicable published rules and regulations thereunder and stating in effect that: (i) in In their opinion the consolidated financial statements and related supplemental schedules audited ~~financial statements, financial statement schedules~~ by them and ~~pro forma financial statements, if any,~~ included or incorporated by reference in ~~the~~ Registration Statement No. 333-104574 and the Prospectus ~~and reported on by them~~ comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the ~~related~~ published rules and ~~regulations;~~regulations thereunder. (ii) on On the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; the performance of the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in SAS No. 71, Interim Financial Information, ----------------------------- on the latest unaudited financial statements, if any, included or incorporated by reference in the ProspectusCompany; a reading of the minutes of the meetings of the ~~stockholders, directors, audit and finance committees~~ Board of Directors of the ~~Company and its subsidiaries~~Company; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to the date of the most recent audited financial statements included or incorporated in the Prospectus (it being understood that the foregoing procedures do not constitute an examination made in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter)Company, nothing came to their attention which caused them to believe that: (1) any unaudited condensed financial statements included or incorporated by reference in ~~the~~ Registration Statement No. 333-104574 and the Prospectus do not comply ~~as to~~ in form in all material respects with the applicable accounting requirements of and with the ~~Exchange Act and the related~~ published rules and regulations ~~thereunder~~of the Commission with respect to financial statements included or incorporated in Quarterly Reports on Form 10-Q under the Exchange Act; ~~and~~ or that ~~any material modifications should be made to~~ said unaudited condensed financial statements ~~for them to be~~ are not in conformity with generally accepted accounting ~~principles~~principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in Registration Statement No. 333-104574 and the Prospectus; (2) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information~~), audited or unaudited,~~ ) included or incorporated by reference in ~~the~~ Registration Statement No. 333-104574 and the ~~Prospectus~~Prospectus (the “Latest Date of Financials”), (A) there was any increase in long-term debt or decrease in net assets or (B) there were any changes, at a specified date not more than five ~~business~~ days prior to the date of the letter, in the common stock, non-redeemable serial preferred ~~stock, current liabilities~~ stock or long-term debt (other than normal amortization of ~~the Company~~ debt premium and ~~its subsidiaries or decreases in the total common stockholders' equity~~ discount) of the Company as compared with the amounts shown on the most recent balance sheet included or incorporated by reference in ~~the~~ Registration Statement No. 333-104574 and the Prospectus, ; except in all instances for changes or ~~for~~ decreases that Registration Statement No. 333-104574 and the Prospectus disclose have occurred or may occur and except as set forth in such letter; or (3) with respect to the period ~~from~~ subsequent to the ~~most recent fiscal year~~ Latest Date of ~~the Company~~ Financials to the date of the most recent available interim financial ~~statements (audited or unaudited) of the Company~~ statements, there were any ~~decreases~~material decreases in operating revenues or net income of the Company, as compared with the ~~corresponding~~ comparable period in of the preceding ~~year in operating revenues~~year, ~~operating income, other income or net income of the Company and its subsidiaries~~ except in all instances for ~~changes~~ decreases that Registration Statement No. 333-104574 and the Prospectus disclose have occurred or ~~decreases~~ may occur and except as set forth in such letter~~, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Agents~~; or (34) the amounts included in any unaudited "“capsule" ” information included or incorporated by reference in ~~the~~ Registration Statement No. 333-104574 and the Prospectus do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated by reference in ~~the~~ Registration Statement No. 333-104574 and the Prospectus;. (iii) ~~they~~ They have ~~performed~~ compared certain ~~other specified procedures as a result of which they determined that certain information of an accounting, financial~~ dollar amounts (or ~~statistical nature (which is limited to accounting, financial or statistical information~~ percentages derived from such dollar amounts) and other financial information specified by the ~~general accounting records of the Company and its subsidiaries~~Agents (A) ~~set forth~~ which appear in the ~~Registration Statement and~~ Prospectus under the ~~Prospectus and~~ caption “Ratio of Earnings to Fixed Charges”, (B) which appear or are incorporated by reference in ~~Exhibit 12 to the Registration Statement, including the information included or incorporated in Items 1, 2, 6, 7 and 11 of~~ the Company's ’s Annual Report on Form 10-K, K incorporated by reference in ~~the~~ Registration Statement No. 333-104574 and the ~~Prospectus, and~~ Prospectus under the ~~information included in the "~~caption “Management's ’s Discussion and Analysis of Financial Condition and Results of Operations" ” or (C) which appear in any of the Company’s Quarterly Reports on Form 10-Q incorporated by reference in Registration Statement No. 333-104574 and the Prospectus under the captions “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Ratio of Earnings to Fixed Charges” (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records 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. All financial statements included or in material incorporated by reference in the ~~Company's Quarterly~~Prospectus shall be deemed included in the Prospectus for purposes of this subsection. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Prior to the Execution Time, the Company shall have furnished to each Agent such further information, documents, certificates and opinions of counsel as the Agents may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to such Agents and counsel for the Agents, this Agreement and all obligations of any Agent hereunder may be canceled at any time by the

Appears in 1 contract

Sources: Distribution Agreement (WGL Holdings Inc)

Conditions to the Obligations of the Agents. The obligations of each ~~-------------------------------------------~~ Agent to solicit offers to purchase the Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, on the Effective Date, when any supplement to the Prospectus is filed with the Commission and as of each Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement as amended shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have furnished to each Agent the opinion of ~~▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ (~~either the General Counsel or ~~such other counsel reasonably satisfactory to the Agents), counsel~~ any Associate or Assistant General Counsel for the Company, dated the ~~Execution Time~~date hereof, to the effect that: (i) the Company ~~has been~~ is a corporation duly ~~incorporated and is~~ incorporated, validly existing ~~as a corporation~~ and in good standing under the laws of the State of ~~Alabama~~Ohio, with full corporate power and authority to own its properties and conduct ~~its~~ the business conducted by it as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing ~~under the laws of each~~ in any jurisdiction ~~which requires such qualification wherein~~ where it ~~owns~~ has material property or leases material properties or conducts material business and wherein the failure to be so qualified would have a material adverse effect on the business of the Company and the subsidiaries taken as a whole; (ii) each of the Subsidiaries has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own its properties and conduct its business as described in the Prospectusassets, and ~~Alabama Gas Corporation~~ is duly qualified to do business as a foreign corporation and is in good standing ~~under~~ in each other jurisdiction where the ~~laws~~ character of ~~each jurisdiction which~~ its properties or the nature of its business requires such qualification ~~wherein it owns or leases material properties or conducts material business,~~ (except where the failure to so qualify ~~does~~ would not have a material adverse effect on the financial condition, or the earnings, business affairs or business prospects of the Company and its ~~subsidiaries~~ Subsidiaries taken as a whole); and the Company is in good standing in the State of California and the Commonwealth of Virginia; (iii) all the outstanding shares of capital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances (with the exception of those encumbrances in the Indenture); (ivii) the Company's authorized equity capitalization is as set forth in the Prospectus; and the Notes conform to the description thereof contained in the Prospectus (subject to the insertion in the Notes of the maturity dates, the interest rates and other similar terms thereof which will be described in supplements to the Prospectus as contemplated by the fourth sentence of Section 1(a) of this Agreement); (viii) (if the ~~Indenture~~ Company has one or more Significant Subsidiaries at the date of such opinion) each Significant Subsidiary of the Company has been duly ~~authorized, executed~~ incorporated and ~~delivered~~is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has ~~been duly qualified under the Trust Indenture Act~~corporate power and authority to own, lease and ~~constitutes a legal, valid~~ operate its properties and ~~binding instrument enforceable against the Company in accordance with~~ conduct its ~~terms (subject,~~ business as to enforcement of remedies, to applicable bankruptcy, reorganization, fraudulent conveyance, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect, and by the availability of specific performance or of other equitable relief which is subject to the discretion of the court before which any proceeding may be brought); and up to an aggregate principal amount of $__________ of the Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the purchasers thereof, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture (other than the indemnity provisions contained in Section 8 hereof or Section 701 of the Indenture as to which such counsel need express no opinion); (vi) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration ~~Statement~~ Statement, and is duly qualified to do business as a foreign corporation and is in good standing in any jurisdiction where such Significant Subsidiary has material property or ~~Prospectus~~assets, and is duly qualified to do business as a foreign corporation and is in good standing in each other jurisdiction where the character of its properties or the nature of its business requires such qualification (except where the failure to so qualify would not have a material adverse effect on the financial condition, or ~~to be filed as an exhibit, which is not described or filed as required; and~~ the statements included or incorporated by reference in the Prospectus describing material contracts or agreements relating to the Company fairly summarize such matters; (vii) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been or will be made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened; and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; and such counsel has no reason to believe that the Registration Statement at the Effective Date or at the Execution Time 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 includes any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (viii) this Agreement has been duly authorized, executed and delivered by the Company; (ix) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated herein except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the sale of the Notes as contemplated by this Agreement and such other approvals (specified in such opinion) as have been obtained; (x) neither the execution and delivery of the Indenture, the issue and sale up to an aggregate principal amount of $__________ of the Notes, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or by-laws of the Company or the terms of any indenture or other agreement or instrument known to such counsel and to which the Company or any of its Subsidiaries is a party or bound or any judgment, order, regulation or decree known to such counsel to be applicable to the Company or any of its Subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any of its Subsidiaries; (xi) to the knowledge of such counsel no holders of securities of the Company have rights to the registration of such securities under the Registration Statement; (xii) the information contained in the Prospectus under the caption "Certain Tax Considerations" is a fair and accurate summary of the principal Federal income tax consequences associated with the ownership of the Notes; and (xiii) the Company is exempt from all provisions of the 1935 Act except Section 9(a)(2) thereof. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Alabama or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Agent and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the date such opinion is rendered. (c) Each Agent shall have received from Winthrop, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (or such other counsel reasonably satisfactory to the Company and the Agents), counsel for the Agents, such opinion or opinions, dated the Execution Time, with respect to the issuance and sale of the Notes, the Indenture, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Agents may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to each Agent a certificate of the Company, signed by the Chairman of the Board or the president and the principal financial or accounting officer of the Company, dated the Execution Time, to the effect that the signers of such certificate have reviewed the Registration Statement, the Prospectus, any supplement to the Prospectus and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the date hereof with the same effect as if made on the date hereof and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied as a condition to the obligation of the Agents to solicit offers to purchase the Notes; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business affairs or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto). (e) At the Execution Time, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (or such other accountants reasonably satisfactory to the Company and the Agents) shall have furnished to each Agent a letter or letters (which may refer to letters previously delivered to the Agents), dated as of the Execution Time, in form and substance satisfactory to the Agents, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and stating in effect that: (i) in their opinion the audited financial statements, financial statement schedules and pro forma financial statements, if any, included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations; (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; the performance of the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in SAS No. 71, Interim Financial Information, ----------------------------- on the latest unaudited financial statements, if any, included or incorporated by reference in the Prospectus; a reading of the minutes of the meetings of the stockholders, directors, audit and finance committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters business prospects of the Company and its subsidiaries taken as ~~to transactions and events subsequent to the date~~ a whole); all of the most recent audited financial statements included or incorporated in the Prospectus (it being understood that the foregoing procedures do not constitute an examination made in accordance with generally accepted auditing standards issued and ~~they would not necessarily reveal matters~~ outstanding capital stock of ~~significance with respect to the comments made in~~ each Significant Subsidiary has been duly authorized and validly issued and is fully paid and nonassessable, and all of such letter), nothing came to their attention which caused them to believe that: (1) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; and that any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; (2) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated in the Registration Statement and the Prospectus, there were any changes, at a specified date not more than five business days prior to the date of the letter, in the common capital stock, ~~preferred stock~~except for directors' qualifying shares, current liabilities or long-term debt of the Company and its subsidiaries or decreases in the total common stockholders' equity of the Company as compared with the amounts shown on the most recent balance sheet included or incorporated in the Registration Statement and the Prospectus, or for the period from the most recent fiscal year of the Company to the date of the most recent available financial statements (audited or unaudited) of the Company there were any decreases, as compared with the corresponding period in the preceding year in operating revenues, operating income, other income or net income of the Company and its subsidiaries except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation is owned by the ~~Company~~ Company, directly or through subsidiaries, free and clear of any mortgage, pledge, lien, encumbrance, claim or equity. For purposes of this paragraph a "Significant Subsidiary" shall mean a "significant subsidiary" as to defined in Rule 405 of Regulation C under the significance thereof unless said explanation is not deemed necessary by the Agents; or (3) the amounts included in any unaudited "capsule" information included or incorporated in the Registration Statement and the Prospectus do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated in the Registration Statement and the ProspectusAct; (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement, including the information included or incorporated in Items 1, 2, 6, 7 and 11 of the Company's Annual Report on Form 10-K, incorporated in the Registration Statement and the Prospectus, and the information included in the "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated in the Company's Quarterly

Appears in 1 contract

Sources: Distribution Agreement (TRW Inc)

Conditions to the Obligations of the Agents. The ~~obligations~~ obligation of each ~~-------------------------------------------~~ Agent to solicit offers to purchase the Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, on the Effective Date, when any supplement to the Prospectus is filed with the ~~Commission and~~ Commission, as of each Closing ~~Date~~Date and on the date of each solicitation, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, or any part thereof, shall have been issued and no proceedings for that purpose shall have been instituted or threatened, or, to the knowledge of the Company or any Agent, be contemplated by the Commission. (b) The Company shall have furnished to each Agent the opinion of ~~▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ (~~its General Counsel or ~~such other counsel reasonably satisfactory to~~ the ~~Agents), counsel~~ Deputy General Counsel for the Company, dated the Execution Time, to the effect that: (i) 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 the ~~State of Alabama~~jurisdiction in which it is chartered or organized, with full corporate power and authority to own its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material ~~business and wherein the failure to be so qualified would have a material adverse effect on the business of the Company and the subsidiaries taken as a whole~~business; (ii) each of the Subsidiaries has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own its properties and conduct its business as described in the Prospectus, and Alabama Gas Corporation is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, except where the failure to so qualify does not have a material adverse effect on the business of the Company and its subsidiaries as a whole; (iii) all the outstanding shares of capital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interests, claims, liens or ~~encumbrances (with the exception of those encumbrances in the Indenture)~~encumbrances; (iviii) the Company's authorized equity capitalization is as set forth in the ~~Prospectus~~Registration Statement; and the Notes conform to the description thereof contained in the Prospectus (subject to the insertion in the Notes of the maturity dates, the interest rates and other similar terms thereof which will be described in supplements to the Prospectus as contemplated by the ~~fourth~~ third sentence of Section 1(a) of this Agreement); (viv) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, ~~fraudulent conveyance,~~ insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect~~, and by the availability of specific performance or of other equitable relief which is subject to the discretion of the court before which any proceeding may be brought~~); and ~~up to an aggregate principal amount of $__________ of~~ the Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and the Procedures and delivered to by the Trustee and paid for by the purchasers thereof, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other ~~than~~ laws affecting creditors' rights generally from time to time in effect); (v) [the ~~indemnity provisions contained in Section 8 hereof or Section 701~~ Company is a public utility holding company within the meaning of the ~~Indenture~~ PUHC Act and is registered as such under such Act; and] the Company is not subject to ~~which such counsel need express no opinion)~~registration under the Investment Company Act; (vi) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its ~~subsidiaries~~Subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated ~~by reference~~ in the Prospectus describing any legal proceedings or material contracts or agreements relating to the Company fairly summarize such matters; (vii) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been ~~or will be~~ made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been ~~issued and~~ issued, no proceedings for that purpose have been instituted or threatened; , and the Registration Statement as of the Effective Date complied and the Prospectus as of the Execution Time complies (~~other than~~ except that no opinion need be expressed as to the financial statements and other financial and statistical information contained ~~therein as to which such counsel need express no opinion~~in the Registration Statement or the Prospectus or the Trustee's Statement of Eligibility on Form T-1) ~~comply~~ as to form in all material respects with the applicable requirements of the ~~Act, the Exchange~~ Act and the ~~Trust Indenture~~ Exchange Act and the respective rules thereunder; and such counsel has no reason to believe that the Registration Statement at the Effective Date ~~or at the Execution Time~~ 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 Execution Time includes any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading~~misleading (except that no opinion need be expressed as to the financial statements and other financial and statistical information contained or incorporated by reference therein or to any information relating to the book-entry system of payments and transfers of the Notes or the depository therefor set forth under the captions "Book Entry System" in the Prospectus or as to the Trustee's Statement of Eligibility on Form T-1); (viii) this Agreement has been duly authorized, executed and delivered by the Company; (ix) [except for such approvals as may be required under the PUHC Act, which have been obtained for the period ending April 15, 2006,] no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated herein except such as have been obtained under the Act and such ~~as may be required under the blue sky laws of any jurisdiction in connection with the sale of the Notes as contemplated by this Agreement and such~~ other approvals (specified in such opinion) as have been obtained; (x) neither the execution and delivery of this Agreement or the Indenture, the issue and sale up of the Notes, nor the consummation of any other of the transactions contemplated herein nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or constitute a default under, any law or the charter or bylaws of the Company or the terms of any indenture or other agreement or instrument known to ~~an aggregate principal amount~~ such counsel and to which the Company or any of ~~$__________~~ its subsidiaries is a party or bound, or any judgment, order, decree or regulation known to such counsel to be applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any of its subsidiaries; (xi) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement; (xii) the statements contained in the Prospectus under the captions "Description of Notes" and "Plan of Distribution" fairly present the matters referred to therein; (xiii) the documents incorporated by reference in the Prospectus (other than the financial statements and other financial or statistical data contained therein, as to which such counsel need express no opinion), when they were filed with the Commission complied as to form in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder; and (xiv) except as otherwise set forth in the Prospectus, the Company has such licenses, permits, consents, approvals, authorizations and/or orders of governmental bodies, political subdivisions or regulatory authorities, free from burdensome restrictions, as are necessary for the acquisition, construction, ownership, maintenance and operation of the properties now owned by it and the conduct of the business now carried on by it as described in the Registration Statement and Prospectus, and the Company is not in default or violation of any thereof and is carrying on its business in accordance therewith and, to the best of his knowledge, with all applicable federal, state and other laws and regulations, except as would not materially adversely affect the condition (financial or other), business, net worth or results of operations of the Company or the property or assets thereof. In rendering such opinion, such counsel may rely as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials and may assume that the laws of the State of New York are identical to the laws of the State of South Carolina. References to the Prospectus in this paragraph (b) include any supplements thereto at the date such opinion is rendered. No opinion need be expressed as to matters relating to state securities laws or blue sky laws of any jurisdiction. (c) The Company shall have furnished to each Agent the opinion of ▇▇▇▇▇▇ Law Firm, P.A., counsel for the Company, dated the Execution Time, to the effect that: (i) 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 the jurisdiction in which it is chartered or organized, with full corporate power and authority to own its properties and conduct its business as described in the Prospectus; (ii) the Company's authorized equity capitalization is as set forth in the Registration Statement; and the Notes conform to the description thereof contained in the Prospectus (subject to the insertion in the Notes of the maturity dates, the interest rates and other similar terms thereof which will be described in supplements to the Prospectus as contemplated by the third sentence of Section 1(a) of this Agreement); (iii) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect); and the Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and the Procedures and delivered by the Trustee and paid for by the purchasers thereof, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture; (iv) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened, and the Registration Statement as of the Effective Date complied and the Prospectus as of the Execution Time complies (except that no opinion need be expressed as to the financial statements and other financial and statistical information contained in the Registration Statement or the Prospectus or the Trustee's Statement of Eligibility on Form T-1) as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; and such counsel has no reason to believe that the Registration Statement at the Effective 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 at the Execution Time includes any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that no opinion need be expressed as to the financial statements and other financial and statistical information contained or incorporated by reference therein or to any information relating to the book-entry system of payments and transfers of the Notes or the depository therefor set forth under the caption "Book Entry System" in the Prospectus or as to the Trustee's Statement of Eligibility on Form T-1); (v) [the Company is a public utility holding company within the meaning of the PUHC Act and is registered as such under such Act; and] the Company is not subject to registration under the Investment Company Act; (vi) [except for such approvals as may be required under the PUHC Act, which have been obtained for the period ending April 15, 2006,] all approvals required to be obtained from governmental and regulatory authorities in connection with the issuance and sale of the Notes have been obtained and are in full force and effect; (vii) this Agreement has been duly authorized, executed and delivered by the Company; and (viii) neither the execution and delivery of this Agreement or the Indenture, the issue and sale of the Notes, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or constitute a default ~~under~~ under, any law or the charter or ~~by-laws~~ bylaws of the Company or the terms of any indenture or other agreement or instrument known to such counsel and to which the Company or any of its ~~Subsidiaries~~ subsidiaries is a party or ~~bound~~ bound, or any judgment, order, decree or regulation ~~or decree~~ known to such counsel to be applicable to the Company or any of its ~~Subsidiaries~~ subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any of its Subsidiaries; (xi) to the knowledge of such counsel no holders of securities of the Company have rights to the registration of such securities under the Registration Statement; (xii) the information contained in the Prospectus under the caption "Certain Tax Considerations" is a fair and accurate summary of the principal Federal income tax consequences associated with the ownership of the Notes; and (xiii) the Company is exempt from all provisions of the 1935 Act except Section 9(a)(2) thereofsubsidiaries. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Alabama or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Agent and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public ~~officials~~officials and may assume that the laws of the State of New York are identical to the laws of the State of South Carolina. References to the Prospectus in this paragraph (bc) include any supplements thereto at the date such opinion is rendered. No opinion need be expressed as to matters relating to state securities laws or blue sky laws of any jurisdiction. (cd) Each Agent shall have received from ~~Winthrop,~~ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ~~▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (or such other counsel reasonably satisfactory to the Company and the Agents)~~Richmond, Virginia, counsel for the Agents, such opinion or opinions, dated the Execution Time, with respect to the issuance and sale of the Notes, the Indenture, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Agents may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (de) The Company shall have furnished to each Agent a certificate of the Company, signed by any two of the Chairman of the ~~Board or~~ Board, the ~~president and~~ President, the principal financial or officer, the principal accounting officer or a senior vice president of the Company, dated the Execution Time, to the effect that the signers of such certificate have ~~reviewed~~ carefully examined the Registration Statement, the Prospectus, any supplement to the Prospectus and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the date hereof with the same effect as if made on the date hereof and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied as a condition to the obligation of the Agents to solicit offers to purchase the Notes; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto). (e) At the Execution Time, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (or such other accountants reasonably satisfactory to the Company and the Agents) shall have furnished to each Agent a letter or letters (which may refer to letters previously delivered to the Agents), dated as of the Execution Time, in form and substance satisfactory to the Agents, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and stating in effect that: (i) in their opinion the audited financial statements, financial statement schedules and pro forma financial statements, if any, included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations; (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; the performance of the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in SAS No. 71, Interim Financial Information, ----------------------------- on the latest unaudited financial statements, if any, included or incorporated by reference in the Prospectus; a reading of the minutes of the meetings of the stockholders, directors, audit and finance committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to the date of the most recent audited financial statements included or incorporated in the Prospectus (it being understood that the foregoing procedures do not constitute an examination made in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter), nothing came to their attention which caused them to believe that: (1) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; and that any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; (2) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated in the Registration Statement and the Prospectus, there were any changes, at a specified date not more than five business days prior to the date of the letter, in the common stock, preferred stock, current liabilities or long-term debt of the Company and its subsidiaries or decreases in the total common stockholders' equity of the Company as compared with the amounts shown on the most recent balance sheet included or incorporated in the Registration Statement and the Prospectus, or for the period from the most recent fiscal year of the Company to the date of the most recent available financial statements (audited or unaudited) of the Company there were any decreases, as compared with the corresponding period in the preceding year in operating revenues, operating income, other income or net income of the Company and its subsidiaries except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Agents; or (3) the amounts included in any unaudited "capsule" information included or incorporated in the Registration Statement and the Prospectus do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated in the Registration Statement and the Prospectus; (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement, including the information included or incorporated in Items 1, 2, 6, 7 and 11 of the Company's Annual Report on Form 10-K, incorporated in the Registration Statement and the Prospectus, and the information included in the "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated in the Company's Quarterly

Appears in 1 contract

Sources: Selling Agency Agreement (Scana Corp)

Conditions to the Obligations of the Agents. The obligations of each ~~-------------------------------------------~~ Agent to solicit offers to purchase the Notes shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, on the Effective ~~Date,~~ Date and when any supplement to the Prospectus is filed with the ~~Commission and as of each Closing Date~~Commission, to (ii) the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to (iii) the performance by the Company of its obligations hereunder and to (iv) the following additional conditions: (a) If filing of the ~~Prospectus,~~ Prospectus or any Permitted Free Writing Prospectus or any supplement thereto, is required pursuant to Rule ~~424(b)~~424, the ~~Prospectus,~~ Prospectus and any Permitted Free Writing Prospectus and any such supplement, shall have been filed in the manner and within the time period required by Rule ~~424(b)~~424; and no stop order suspending the effectiveness of the Registration Statement nor any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have furnished to each Agent the opinion of B▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ~~▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ (or such other counsel reasonably satisfactory to the Agents)~~Esq., counsel for the Company, dated the Execution Time, to the effect that: (i) ~~the~~ The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the ~~State~~ jurisdiction of ~~Alabama~~its incorporation, with ~~full corporate~~ power and authority (corporate and other) to own its properties and conduct its business as described in the ~~Prospectus~~Prospectus as amended or supplemented, and is duly qualified to do business ~~as a foreign corporation and is~~ in ~~good standing under the laws of~~ each jurisdiction in which ~~requires such qualification wherein~~ it owns or leases ~~material properties~~ real property or ~~conducts material~~ in which the conduct of its business ~~and wherein~~ requires such qualification except where the failure to be so ~~qualified~~ qualified, considering all such cases in the aggregate, does not involve a material risk to the business, properties, financial position or results of operations of the Company. (ii) To the best of such counsel’s knowledge and other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending to which the Company is a party or of which any property of the Company is the subject which, if determined adversely to the Company, would individually or in the aggregate have a material adverse effect on the ~~business~~ financial position, stockholder’s equity or results of operations of the ~~Company and~~ Company; and, to the ~~subsidiaries taken as a whole; (ii) each~~ best of ~~the Subsidiaries has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered~~ such counsel’s knowledge, no such proceedings are threatened or organized, with full corporate power and authority to own its properties and conduct its business as described in the Prospectus, and Alabama Gas Corporation is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns contemplated by governmental authorities or ~~leases material properties or conducts material business, except where the failure to so qualify does not have a material adverse effect on the business of the Company and its subsidiaries as a whole;~~threatened by others. (iii) all the outstanding shares of capital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances (with the exception of those encumbrances in the Indenture); (iv) the Company's authorized equity capitalization is as set forth in the Prospectus; and the Notes conform to the description thereof contained in the Prospectus (subject to the insertion in the Notes of the maturity dates, the interest rates and other similar terms thereof which will be described in supplements to the Prospectus as contemplated by the fourth sentence of Section 1(a) of this Agreement); (v) the Indenture This Agreement has been duly authorized, executed and ~~delivered~~delivered by the Company. (iv) The creation, issuance and sale of the Notes has been duly ~~qualified under the Trust Indenture Act,~~ and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, fraudulent conveyance, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect, and by the availability of specific performance or of other equitable relief which is subject to the discretion of the court before which any proceeding may be brought); and up to an aggregate principal amount of $__________ of the Notes have been duly validly authorized and, when issued within the limitations set forth in the orders from the Public Service Commission of the District of Columbia and the State Corporation Commission of Virginia and such other applicable governmental entities referred to in paragraph (vii) below and executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the purchasers ~~thereof~~thereof in accordance with this Agreement, the Notes will constitute ~~legal,~~ valid and legally binding obligations of the Company entitled to the ~~benefits of~~ benefit provided by the Indenture; and the Notes and the Indenture conform to the descriptions thereof in the Prospectus. (v) The Indenture has been duly authorized, executed and delivered by the parties thereto and constitutes a valid and legally binding instrument, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization and other ~~than the indemnity provisions contained in Section 8 hereof~~ laws of general applicability relating to or ~~Section 701 of~~ affecting creditors’ rights and to general equity principles; and the Indenture ~~as to which such counsel need express no opinion);~~has been duly qualified under the Trust Indenture Act. (vi) The issue and sale of the Notes and the compliance by the Company with all of the provisions of the Notes, the Indenture and this Agreement and the consummation of the transactions therein and herein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the ~~knowledge~~ Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such ~~counsel~~action result in any violation of the provisions of the Company’s Charter, ~~there is no pending~~ as amended, or ~~threatened action~~Bylaws or any statute or any order, ~~suit~~ rule or ~~proceeding before~~ regulation known to such counsel of any court or governmental ~~agency, authority~~ agency or body ~~or any arbitrator involving~~ having jurisdiction over the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated by reference in the Prospectus describing material contracts or agreements relating to the Company fairly summarize such matters;properties. (vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body having jurisdiction over the ~~Registration Statement has become effective~~ Company or any of its properties, is required for the issue and sale of the Notes or the consummation by the Company of the other transactions contemplated by this Agreement or the Indenture, except such as have been obtained under the Act and the Trust Indenture Act~~; any required filing~~ , and except for filings with and the orders from the Public Service Commission of the ~~Prospectus,~~ District of Columbia and ~~any supplements thereto, pursuant to Rule 424(b) has been or will be made in~~ the ~~manner~~ State Corporation Commission of Virginia and ~~within the time period~~ such other applicable filings and orders required by ~~Rule 424(b); to~~ any other governmental entity having jurisdiction over the ~~knowledge of such counsel, no stop order suspending~~ Company authorizing the ~~effectiveness~~ issuance and sale by the Company of the ~~Registration Statement has been issued and no proceedings for that purpose~~ Notes, all of which orders have been ~~instituted or threatened;~~ obtained and ~~the~~ are in full force and effect. (viii) The Registration Statement and the Prospectus (~~other than~~ except as to the financial statements and other financial ~~and statistical information~~ data contained or incorporated by reference therein as to which such counsel need express no opinion) comply as to form in all material respects with ~~the~~ all applicable requirements of the Act, the Exchange Act and the ~~Trust Indenture Act~~ applicable instructions, rules and regulations of the ~~respective rules~~ Commission thereunder; the Registration Statement has become effective under the Act, and, to the best knowledge of such counsel, no proceedings for a stop order with respect thereto nor any notices objecting to its use have been instituted or are pending or threatened under Section 8 of the Act; and such counsel has no reason to believe that the Registration ~~Statement~~ Statement, at ~~the~~ its Effective ~~Date or at the Execution Time~~ Date, contained ~~any~~ an untrue statement of a material fact or omitted 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~~ Prospectus, as of the date of such opinion, includes ~~any~~ an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading~~; (viii) this Agreement has been duly authorized, executed and delivered by the Company;~~. (ix) ~~no consent, approval, authorization or order of any court or governmental agency or body is required for~~ The Company’s gas distribution activities are exempt from the consummation of the transactions contemplated herein except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the sale of the Notes as contemplated by this Agreement and such other approvals (specified in such opinion) as have been obtained;Natural Gas Act. (x) ~~neither the execution and delivery~~ The Public Service Commission of the ~~Indenture~~District of Columbia, the ~~issue~~ State Corporation Commission of Virginia and ~~sale up to an aggregate principal amount of $__________ of the Notes, nor the consummation of any~~ such other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or by-laws of the Company or the terms of any indenture or other agreement or instrument known to such counsel and to which the Company or any of its Subsidiaries is a party or bound or any judgment, order, regulation or decree known to such counsel to be applicable to the Company or any of its Subsidiaries of any court, regulatory body, administrative agency, governmental ~~body or arbitrator~~ entities having jurisdiction over the Company ~~or any of its Subsidiaries; (xi)~~ with respect to the ~~knowledge~~ issue and sale of the Notes have issued appropriate orders with respect to the issuance and sale of the Notes in accordance with this Agreement; such orders are still in full force and effect; the issuance and sale of the Notes in accordance with this Agreement conform with the terms of such counsel no holders of securities of the Company have rights to the registration of such securities under the Registration Statement; (xii) the information contained in the Prospectus under the caption "Certain Tax Considerations" is a fair and accurate summary of the principal Federal income tax consequences associated with the ownership of the Notes; and (xiii) the Company is exempt from all provisions of the 1935 Act except Section 9(a)(2) thereof. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Alabama or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Agent and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the date such opinion is renderedorders. (c) Each Agent shall have received from ~~Winthrop, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇~~ Hunton & W▇▇▇▇▇▇▇ ~~(or such other counsel reasonably satisfactory to the Company and the Agents)~~LLP, counsel for the Agents, ~~such opinion or opinions~~an opinion, dated the Execution Time, with respect to the issuance and sale of the Notes, the Indenture, the Registration ~~Statement~~Statements, the Prospectus (together with any supplement thereto) ), and other related matters as the Agents may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to each Agent a certificate of the Company, signed by any of the Chairman of the ~~Board~~ Board, the President, the Chief Executive Officer, any Vice President having responsibilities for financial matters, the Chief Accounting Officer or the ~~president and the principal financial or accounting officer~~ Treasurer of the Company, dated the Execution Time, to the effect that the ~~signers~~ signer of such certificate ~~have reviewed~~ has carefully examined the Registration Statement, the Prospectus, any supplement to the Prospectus and this Agreement and that: (i) ~~the~~ The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the date ~~hereof~~ of such certificate with the same effect as if made on at the ~~date hereof~~ Execution Time and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied as a condition to the obligation of the Agents to solicit offers to purchase the Notes;. (ii) no No stop order suspending the effectiveness of ~~the~~ any Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company's ’s knowledge, threatened~~; and~~. (iii) ~~since~~ (1) Since the date of the ~~most recent~~ latest audited financial statements included or incorporated by reference in Registration Statement No. 333-134494 and the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus, there has not been no any material ~~adverse~~ loss or interference with the Company’s business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in Registration Statement No. 333-134494 and the Prospectus and (2) since the respective dates as of which information is given in Registration Statement No. 333-134494 and the Prospectus, there has not been any change in the ~~condition~~ capital stock (other than the effect of stock-based compensation) or long-term debt (other than any redemptions or purchases of First Mortgage Bonds or Medium Term Notes, normal amortization of debt premium and discount, repayments of bank or finance company borrowings and repurchases of commercial paper) of the Company or any material change, or any development involving a prospective material change, in or affecting the general affairs, management, financial ~~or other)~~position, ~~earnings~~stockholder’s equity, ~~business~~ results of operations or properties of the ~~Company and its subsidiaries~~Company, ~~whether or not arising from transactions in the ordinary course of business, except~~ otherwise than as set forth in or contemplated in Registration Statement No. 333-134494 and the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus. (e) At the Execution Time, ~~▇▇▇▇▇▇▇~~ Deloitte & ~~▇▇▇▇▇▇▇ (or such other accountants reasonably satisfactory to the Company and the Agents)~~ Touche LLP shall have furnished to each Agent a ~~letter or letters (which may refer to letters previously delivered to the Agents)~~letter, dated as of the Execution Time, in form and substance satisfactory to the Agents, confirming that they are an independent ~~accountants~~ registered public accounting firm within the meaning of the Act and the ~~Exchange Act~~ rules and regulations of the Public Company Accounting Oversight Board and the ~~respective~~ applicable published rules and regulations thereunder and stating in effect that: (i) in In their opinion the consolidated financial statements and related supplemental schedules audited ~~financial statements, financial statement schedules~~ by them and ~~pro forma financial statements, if any,~~ included or incorporated by reference in ~~the~~ Registration Statement No. 333-134494 and the Prospectus ~~and reported on by them~~ comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the ~~related~~ published rules and ~~regulations;~~regulations thereunder. (ii) on On the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; the performance of the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in SAS No. 71, Interim Financial Information, ----------------------------- on the latest unaudited financial statements, if any, included or incorporated by reference in the ProspectusCompany; a reading of the minutes of the meetings of the ~~stockholders, directors, audit and finance committees~~ Board of Directors of the ~~Company and its subsidiaries~~Company; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to the date of the most recent audited financial statements included or incorporated in the Prospectus (it being understood that the foregoing procedures do not constitute an examination made in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter)Company, nothing came to their attention which caused them to believe that: (1) any unaudited condensed financial statements included or incorporated by reference in ~~the~~ Registration Statement No. 333-134494 and the Prospectus do not comply ~~as to~~ in form in all material respects with the applicable accounting requirements of and with the ~~Exchange Act and the related~~ published rules and regulations ~~thereunder~~of the Commission with respect to financial statements included or incorporated in Quarterly Reports on Form 10-Q under the Exchange Act; ~~and~~ or that any material modifications should be made to said unaudited condensed financial ~~statements~~ statements, for them to be in conformity with accounting principles generally accepted ~~accounting principles~~in the United States of America;; (2) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information~~), audited or unaudited,~~ ) included or incorporated by reference in ~~the~~ Registration Statement No. 333-134494 and the ~~Prospectus~~Prospectus (the “Latest Date of Financials”), (A) there was any increase in long-term debt (other than normal amortization of debt premium and discount) or decrease in net assets or (B) there were any changes, at a specified date not more than five ~~business~~ days prior to the date of the letter, in the common ~~stock,~~ stock or non-redeemable serial preferred ~~stock, current liabilities or long-term debt of the Company and its subsidiaries or decreases in the total common stockholders' equity~~ stock of the Company as compared with the amounts shown on the most recent balance sheet included or incorporated by reference in ~~the~~ Registration Statement No. 333-134494 and the Prospectus, ; except in all instances for changes or ~~for~~ decreases that Registration Statement No. 333-134494 and the Prospectus disclose have occurred or may occur and except as set forth in such letter; (3) with respect to the period ~~from~~ subsequent to the ~~most recent fiscal year~~ Latest Date of ~~the Company~~ Financials to the date of the most recent available interim financial ~~statements (audited or unaudited) of the Company~~ statements, there were any ~~decreases~~decreases in operating revenues or net income applicable to common stock of the Company, as compared with the ~~corresponding~~ comparable period in of the preceding ~~year in operating revenues~~year, ~~operating income, other income or net income of the Company and its subsidiaries~~ except in all instances for ~~changes~~ decreases that Registration Statement No. 333-134494 and the Prospectus disclose have occurred or ~~decreases~~ may occur and except as set forth in such letter~~, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Agents~~; or (34) the amounts included in any unaudited "“capsule" ” information included or incorporated by reference in ~~the~~ Registration Statement No. 333-134494 and the Prospectus do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated by reference in ~~the~~ Registration Statement No. 333-134494 and the Prospectus;. (iii) ~~they~~ They have ~~performed~~ compared certain ~~other specified procedures as a result of which they determined that certain information of an accounting, financial~~ dollar amounts (or ~~statistical nature (which is limited to accounting, financial or statistical information~~ percentages derived from such dollar amounts) and other financial information specified by the ~~general accounting records of the Company and its subsidiaries~~Agents (A) ~~set forth~~ which appear in the ~~Registration Statement and~~ Prospectus under the ~~Prospectus and~~ caption “Ratio of Earnings to Fixed Charges”, (B) which appear or are incorporated by reference in ~~Exhibit 12 to the Registration Statement, including the information included or incorporated in Items 1, 2, 6, 7 and 11 of~~ the Company's ’s Annual Report on Form 10-K, K incorporated by reference in ~~the~~ Registration Statement No. 333-134494 and the ~~Prospectus, and~~ Prospectus under the ~~information included in the "~~caption “Management's ’s Discussion and Analysis of Financial Condition and Results of Operations" ” or (C) which appear in any of the Company’s Quarterly Reports on Form 10-Q incorporated by reference in Registration Statement No. 333-134494 and the Prospectus under the captions “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “Ratio of Earnings to Fixed Charges” (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records 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. All financial statements included or in material incorporated by reference in the ~~Company's Quarterly~~Prospectus shall be deemed included in the Prospectus for purposes of this paragraph. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) At the Execution Time, prior to delivering the letter described in Section 5(e), Deloitte & Touche LLP shall have received from Hunton & W▇▇▇▇▇▇▇ LLP, counsel for the Agents, an opinion stating in effect that they are acting as counsel to Agents under this Agreement, that they are delivering the opinion in connection with the delivery of a comfort letter by Deloitte & Touche LLP pursuant to this Agreement, and they are of the opinion that in the event an action were to be brought against an Agent under Section 11 of the Act with respect to sales made pursuant to this Agreement, the Agent would have available to it, among other things, a due diligence defense under

Appears in 1 contract

Sources: Distribution Agreement (WGL Holdings Inc)

Conditions to the Obligations of the Agents. The ~~obligations~~ obligation of each ~~------------------------------------------- Agent~~ of the Agents to solicit offers to purchase the Notes shall be subject to the accuracy of the representations and warranties on the part of ~~the Company~~ SBC contained herein as of the ~~Execution Time~~date hereof, on as of the ~~Effective Date~~date of the effectiveness of any amendment to the Registration Statement (including the filing of any document incorporated by reference therein), ~~when~~ as of the date any supplement to the Prospectus is filed with the ~~Commission~~ SEC as of each Acceptance Date and as of each Closing Date, to the accuracy of the statements of ~~the Company~~ SBC made in any certificates pursuant to the provisions hereof, to the performance by ~~the Company~~ SBC of its obligations hereunder and to the following additional conditions: (a) If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); and no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) ~~The Company~~ SBC shall have furnished to ~~each Agent~~ the Agents the opinion of ~~▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ (or such other counsel reasonably satisfactory to the Agents), counsel for the Company~~its general counsel, dated the ~~Execution Time~~date hereof, to the effect that: (i) each of SBC and Pacific Telesis Group, Ameritech Corporation, Southern New England Telecommunications Corporation, The Southern New England Telephone Company, Illinois Bell Telephone Company, ▇▇▇▇▇▇▇ ▇▇▇▇ Telephone Company, Inc., Michigan Bell Telephone Company, The Ohio Bell Telephone Company, Pacific Bell Telephone Company, Southwestern Bell Telephone Company, Wisconsin Bell, Inc. and any "significant subsidiary" of SBC as defined in Rule 1-02 (w) of Regulation S-X under the ~~Company~~ Securities Act (collectively, the "Significant Subsidiaries") has been duly incorporated and is validly existing as a corporation in good standing under the laws of the ~~State of Alabama~~jurisdiction in which it is chartered or organized, with full corporate power and authority to own its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases ~~material~~ properties or conducts ~~material business and wherein~~ business, except where the failure to ~~be so qualified~~ qualify would not have a material adverse effect on ~~the business of the Company~~ SBC and ~~the subsidiaries~~ its Significant Subsidiaries taken as a whole; (ii) ~~each of~~ the ~~Subsidiaries~~ Indenture has been duly ~~organized and is validly existing as a corporation in good standing~~ qualified under the ~~laws of the jurisdiction in which it is chartered or organized, with full corporate power~~ Trust Indenture Act and authority to own its properties and conduct its business as described in the Prospectus, and Alabama Gas Corporation is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, except where the failure to so qualify does not have a material adverse effect on the business of the Company and its subsidiaries as a whole; (iii) all the outstanding shares of capital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances (with the exception of those encumbrances in the Indenture); (iv) the Company's authorized equity capitalization is as set forth in the Prospectus; and the Notes conform to the description thereof contained in the Prospectus (subject to the insertion in the Notes of the maturity dates, the interest rates and other similar terms thereof which will be described in supplements to the Prospectus as contemplated by the fourth sentence of Section 1(a) of this Agreement); (v) the Indenture has been duly authorized, executed and delivered~~, has been duly qualified under the Trust Indenture Act~~, and constitutes a legal, valid and binding instrument enforceable against ~~the Company~~ SBC in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, ~~fraudulent conveyance,~~ insolvency, moratorium or other laws affecting creditors' rights generally from time to time in ~~effect~~effect and to general principles of equity) and the Notes have been duly authorized and established in conformity with the Indenture, ~~and by~~ and, when the availability of specific performance or of other equitable relief which is subject to the discretion of the court before which any proceeding may be brought); and up to an aggregate principal amount of $__________ terms of the Notes have been duly ~~authorized and~~established in conformity with the Indenture so as not to violate or conflict with any provisions of law or any agreement or instrument applicable to SBC or any of its properties, when the Notes have been duly executed by the proper officers of SBC, registered and duly authenticated ~~in accordance with the provisions of~~ pursuant to the Indenture and delivered to and paid for by the purchasers thereof, the Notes will constitute legal, valid and binding obligations of ~~the Company~~ SBC entitled to the benefits of the ~~Indenture (other than the indemnity provisions contained in Section 8 hereof or Section 701 of the Indenture as to which such counsel need express no opinion)~~Indenture; (viiii) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving ~~the Company~~ SBC or any of its ~~subsidiaries~~Significant Subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated ~~by reference~~ in the Prospectus describing any legal proceedings or material contracts or agreements relating to ~~the Company~~ SBC or any of its Significant Subsidiaries fairly summarize such matters; (~~vii~~iv) the Registration Statement ~~has~~ and any amendments thereto have become effective under the Securities Act~~; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been or will be made in the manner and within the time period required by Rule 424(b)~~; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been ~~issued and~~ issued, no proceedings for that purpose have been instituted or threatened; , and the Registration ~~Statement and~~ Statement, the Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than the financial statements and other financial and statistical information contained therein as to which such counsel need express no opinion) ~~comply~~ complied as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Trust Indenture Act and the respective rules and regulations thereunder; and such counsel has no reason to believe that the Registration ~~Statement~~ Statement, or any amendment thereof, at the ~~Effective Date~~ time it became effective or at the ~~Execution Time~~ date of this Agreement, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the ~~Prospectus includes~~ Prospectus, at its issue date or at the date of this Agreement, included any untrue statement of a material fact or ~~omits~~ omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (~~viii~~v) this Agreement has been duly authorized, executed and delivered by ~~the Company~~SBC; (ixvi) no order, consent, approval, ~~authorization~~ authorization, registration or ~~order~~ qualification of or with any ~~court or~~ governmental agency or body having jurisdiction over SBC or any of its Significant Subsidiaries or any of their respective properties is required for the issue and sale of the Notes or the consummation of the transactions contemplated ~~herein~~ by this Agreement or the Indenture, except such as have been, or will have been prior to the Closing Date, obtained under the Securities Act and the Trust Indenture Act and such ~~as may be~~ consents, approvals, authorizations, registrations or qualifications required under ~~the blue sky~~ state securities or Blue Sky laws ~~of any jurisdiction~~ in connection with the sale and distribution of the Notes as contemplated by this Agreement and such other approvals (specified in such opinion) as have been obtained; (xvii) neither the execution and delivery of the ~~Indenture~~Indenture or this Agreement, the issue and sale ~~up to an aggregate principal amount of $__________~~ of the ~~Notes~~Notes (when the terms of the Notes have been duly established in conformity with the Indenture so as not to violate or conflict with any provisions of law or any agreement or instrument applicable to SBC or any of its properties and when the Notes have been duly executed by the proper officers of SBC, registered and duly authenticated pursuant to the Indenture and delivered to and paid for by the purchasers thereof), nor the consummation of any other of the transactions herein or therein contemplated nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach ~~or violation~~ of, or constitute a default ~~under any law or~~ under, the charter or by-laws of ~~the Company~~ SBC or the terms of any indenture or other agreement or instrument known to such counsel and to which ~~the Company~~ SBC is a party or by which SBC or any of its ~~Subsidiaries is a party or bound~~ assets are bound, or any ~~judgment, order,~~ order or regulation ~~or decree~~ known to such counsel to be applicable to ~~the Company or any of its Subsidiaries~~ SBC of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over ~~the Company or any of its Subsidiaries;~~SBC; and (xiviii) ~~to the knowledge of such counsel~~ no holders of securities of ~~the Company~~ SBC have rights to the registration of such securities under the Registration Statement~~; (xii)~~ . In rendering such opinion, such counsel may rely, as to the ~~information contained in the Prospectus under the caption "Certain Tax Considerations" is a fair and accurate summary~~ execution of the ~~principal Federal income tax consequences associated with~~ Indenture by the ~~ownership~~ Trustee, upon a certificate of the ~~Notes; and (xiii)~~ Trustee setting forth the ~~Company is exempt from all provisions of the 1935 Act except Section 9(a)(2) thereof~~facts as to such execution. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the ~~State~~ state of ~~Alabama~~ Delaware or of the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to ~~counsel for~~ the ~~Agent~~ Agents and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of ~~the Company~~ SBC and public officials~~. References to the Prospectus in this paragraph (b) include any supplements thereto at the date such opinion is rendered~~. (c) ~~Each Agent~~ The Agents shall have received from ~~Winthrop,~~ ▇▇~~▇▇▇▇▇,~~ ▇▇▇▇▇▇ & ▇▇▇▇▇▇~~▇ (or such other counsel reasonably satisfactory to the Company and the Agents)~~▇▇, counsel for the Agents, such opinion or opinions, dated the ~~Execution Time~~date hereof, with respect to the issuance and sale of the Notes, the Indenture, the Registration Statement, the Prospectus ~~(together with any supplement thereto)~~ and other related matters as the Agents may reasonably require, and ~~the Company~~ SBC shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (d) ~~The Company~~ SBC shall have furnished to ~~each Agent~~ the Agents a certificate ~~of the Company,~~ signed by ~~the~~ its Chairman of the Board or ~~the president~~ its President or a Vice President and ~~the principal financial~~ its Treasurer or ~~accounting officer of the Company, dated the Execution Time,~~ an Assistant Treasurer stating that after reasonable investigation and to the ~~effect that the signers~~ best of ~~such certificate have reviewed the Registration Statement, the Prospectus, any supplement to the Prospectus and this Agreement and that~~their knowledge: (i) the representations and warranties of SBC, as the ~~Company~~ case may be, in this Agreement are true and correct in all material respects on and as of the date hereof with the same effect as if made on the date ~~hereof and the Company~~ hereof; SBC has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied as a condition to the obligation of the Agents to solicit offers to purchase the Notes; and the conditions set forth in Paragraph 5(a) have been fulfilled; (ii) ~~no stop order suspending~~ as of the ~~effectiveness~~ date of the Prospectus, the Registration Statement ~~has been issued~~ and ~~no proceedings for that purpose have been instituted or,~~ the Prospectus did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the ~~Company's knowledge, threatened~~statements therein not misleading; and (iii) since the date of the most recent financial statements included or incorporated by reference in the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus, there has been no material adverse change in the condition (financial or other), earnings, business or properties of ~~the Company~~ SBC and its ~~subsidiaries~~Significant Subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus. (e) At SBC shall have furnished to the ~~Execution Time~~Agents (i) a letter of its independent auditors, currently Ernst & Young LLP, addressed to the Board of Directors of SBC and dated the later of the effective date of the Registration Statement or the date of the filing of SBC's latest Annual Report on Form 10-K, of the type described in the American Institute of Certified Public Accountants' Statement on Auditing Standards No. 72 ("SAS 72") and covering such financial statement items of SBC as the Agents may reasonably have requested; (ii) a letter of its independent auditors, currently ▇▇▇▇▇ & Young LLP, addressed to the Agents and dated the date hereof, stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus, as of a date not more than five business days prior to the date of such letter), the conclusions and findings of such firm with respect to the financial information and other matters of SBC covered by its letter referred to in subclause (i) above and confirming in all material respects the conclusions and findings set forth in such prior letter; and (iii) a letter, dated the date hereof, of any other accountants that have audited financial statements included or incorporated by reference in the Registration Statement and Prospectus, addressed to the Agents, of the type described in SAS 72 and covering such financial statement items as the Agents may reasonably request. References to the Registration Statement and the Prospectus in this paragraph (e) are to such documents as amended and supplemented at the date of the letter. (f) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus (with respect to Section 6(c) hereof, only as the Registration Statement and the Prospectus are amended or supplemented through the date of the Terms Agreement) there shall not have been any change, or any development involving a prospective change, in or affecting the business or properties of SBC and its Significant Subsidiaries the effect of which is, in the reasonable judgment of the Agents, so material and adverse as to make it impractical or inadvisable to proceed with the soliciting of offers to purchase the Notes as contemplated by the Registration Statement and the Prospectus (or, in the case of a Terms Agreement, to proceed with the offering or the delivery of the Notes to be purchased as contemplated by the Terms Agreement). (g) Prior to the date hereof, SBC shall have furnished to the Agents such further information, certificates and documents as the Agents may reasonably request. If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Agents, this Agreement and all obligations of the Agents hereunder may be canceled at any time by the Agents. Notice of such cancellation shall be given to SBC in writing or by telephone or telegraph confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Agents, at ▇▇▇ (▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or such other ~~accountants reasonably satisfactory to~~ location as the ~~Company and the Agents) shall have furnished to each Agent a letter or letters (which may refer to letters previously delivered to the Agents)~~parties hereto agree, dated as of the Execution Time, in form and substance satisfactory to the Agents, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and stating in effect that: (i) in their opinion the audited financial statements, financial statement schedules and pro forma financial statements, if any, included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations; (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; the performance of the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in SAS No. 71, Interim Financial Information, ----------------------------- on the latest unaudited financial statements, if any, included or incorporated by reference in the Prospectus; a reading of the minutes of the meetings of the stockholders, directors, audit and finance committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to the date of the most recent audited financial statements included or incorporated in the Prospectus (it being understood that the foregoing procedures do not constitute an examination made in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter), nothing came to their attention which caused them to believe that: (1) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; and that any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; (2) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated in the Registration Statement and the Prospectus, there were any changes, at a specified date not more than five business days prior to the date of the letter, in the common stock, preferred stock, current liabilities or long-term debt of the Company and its subsidiaries or decreases in the total common stockholders' equity of the Company as compared with the amounts shown on the most recent balance sheet included or incorporated in the Registration Statement and the Prospectus, or for the period from the most recent fiscal year of the Company to the date of the most recent available financial statements (audited or unaudited) of the Company there were any decreases, as compared with the corresponding period in the preceding year in operating revenues, operating income, other income or net income of the Company and its subsidiaries except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Agents; or (3) the amounts included in any unaudited "capsule" information included or incorporated in the Registration Statement and the Prospectus do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated in the Registration Statement and the Prospectus; (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement, including the information included or incorporated in Items 1, 2, 6, 7 and 11 of the Company's Annual Report on Form 10-K, incorporated in the Registration Statement and the Prospectus, and the information included in the "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated in the Company's Quarterlyhereof

Appears in 1 contract

Sources: Selling Agency Agreement (SBC Communications Inc)

Conditions to the Obligations of the Agents. The obligations of each ~~-------------------------------------------~~ Agent to solicit offers to purchase the Notes shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, on the Effective ~~Date,~~ Date and when any supplement to the Prospectus is filed with the ~~Commission and as of each Closing Date~~Commission, to (ii) the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to (iii) the performance by the Company of its obligations hereunder and to (iv) the following additional conditions: (a) If filing of the ~~Prospectus,~~ Prospectus or any Permitted Free Writing Prospectus or any supplement thereto, is required pursuant to Rule ~~424(b)~~424, the ~~Prospectus,~~ Prospectus and any Permitted Free Writing Prospectus and any such supplement, shall have been filed in the manner and within the time period required by Rule ~~424(b)~~424; and no stop order suspending the effectiveness of the Registration Statement nor any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have furnished to each Agent the opinion of ▇▇▇▇▇▇ ▇. ▇▇, ▇▇▇▇▇▇, ~~▇▇▇▇ & ▇▇▇▇▇ (or such other counsel reasonably satisfactory to the Agents)~~Esq., counsel for the Company, dated the Execution Time, to the effect that: (i) ~~the~~ The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the ~~State~~ jurisdiction of ~~Alabama~~its incorporation, with ~~full corporate~~ power and authority (corporate and other) to own its properties and conduct its business as described in the ~~Prospectus~~Prospectus as amended or supplemented, and is duly qualified to do business ~~as a foreign corporation and is~~ in ~~good standing under the laws of~~ each jurisdiction in which ~~requires such qualification wherein~~ it owns or leases ~~material properties~~ real property or ~~conducts material~~ in which the conduct of its business ~~and wherein~~ requires such qualification except where the failure to be so ~~qualified~~ qualified, considering all such cases in the aggregate, does not involve a material risk to the business, properties, financial position or results of operations of the Company. (ii) To the best of such counsel’s knowledge and other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending to which the Company is a party or of which any property of the Company is the subject which, if determined adversely to the Company, would individually or in the aggregate have a material adverse effect on the ~~business~~ financial position, stockholder’s equity or results of operations of the ~~Company and~~ Company; and, to the ~~subsidiaries taken as a whole; (ii) each~~ best of ~~the Subsidiaries has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered~~ such counsel’s knowledge, no such proceedings are threatened or organized, with full corporate power and authority to own its properties and conduct its business as described in the Prospectus, and Alabama Gas Corporation is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns contemplated by governmental authorities or ~~leases material properties or conducts material business, except where the failure to so qualify does not have a material adverse effect on the business of the Company and its subsidiaries as a whole;~~threatened by others. (iii) all the outstanding shares of capital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances (with the exception of those encumbrances in the Indenture); (iv) the Company's authorized equity capitalization is as set forth in the Prospectus; and the Notes conform to the description thereof contained in the Prospectus (subject to the insertion in the Notes of the maturity dates, the interest rates and other similar terms thereof which will be described in supplements to the Prospectus as contemplated by the fourth sentence of Section 1(a) of this Agreement); (v) the Indenture This Agreement has been duly authorized, executed and ~~delivered~~delivered by the Company. (iv) The creation, issuance and sale of the Notes has been duly ~~qualified under the Trust Indenture Act,~~ and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, fraudulent conveyance, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect, and by the availability of specific performance or of other equitable relief which is subject to the discretion of the court before which any proceeding may be brought); and up to an aggregate principal amount of $__________ of the Notes have been duly validly authorized and, when issued within the limitations set forth in the orders from the Public Service Commission of the District of Columbia, the Public Service Commission of Maryland and the State Corporation Commission of Virginia and such other applicable governmental entities referred to in paragraph (vii) below and executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the purchasers ~~thereof~~thereof in accordance with this Agreement, the Notes will constitute ~~legal,~~ valid and legally binding obligations of the Company entitled to the ~~benefits of~~ benefit provided by the Indenture; and the Notes and the Indenture conform to the descriptions thereof in the Prospectus. (v) The Indenture has been duly authorized, executed and delivered by the parties thereto and constitutes a valid and legally binding instrument, enforceable in accordance with its terms, subject as to enforcement, to bankruptcy, insolvency, reorganization and other ~~than the indemnity provisions contained in Section 8 hereof~~ laws of general applicability relating to or ~~Section 701 of~~ affecting creditors’ rights and to general equity principles; and the Indenture ~~as to which such counsel need express no opinion);~~has been duly qualified under the Trust Indenture Act. (vi) The issue and sale of the Notes and the compliance by the Company with all of the provisions of the Notes, the Indenture and this Agreement and the consummation of the transactions therein and herein contemplated will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the ~~knowledge~~ Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such ~~counsel~~action result in any violation of the provisions of the Company’s Charter, ~~there is no pending~~ as amended, or ~~threatened action~~Bylaws or any statute or any order, ~~suit~~ rule or ~~proceeding before~~ regulation known to such counsel of any court or governmental ~~agency, authority~~ agency or body ~~or any arbitrator involving~~ having jurisdiction over the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated by reference in the Prospectus describing material contracts or agreements relating to the Company fairly summarize such matters;properties. (vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body having jurisdiction over the ~~Registration Statement has become effective~~ Company or any of its properties, is required for the issue and sale of the Notes or the consummation by the Company of the other transactions contemplated by this Agreement or the Indenture, except such as have been obtained under the Act and the Trust Indenture Act~~; any required filing~~ , and except for filings with and the orders from the Public Service Commission of the ~~Prospectus~~District of Columbia, the Public Service Commission of Maryland and ~~any supplements thereto, pursuant to Rule 424(b) has been or will be made in~~ the ~~manner~~ State Corporation Commission of Virginia and ~~within the time period~~ such other applicable filings and orders required by ~~Rule 424(b); to~~ any other governmental entity having jurisdiction over the ~~knowledge of such counsel, no stop order suspending~~ Company authorizing the ~~effectiveness~~ issuance and sale by the Company of the ~~Registration Statement has been issued and no proceedings for that purpose~~ Notes, all of which orders have been ~~instituted or threatened;~~ obtained and ~~the~~ are in full force and effect. (viii) The Registration Statement and the Prospectus (~~other than~~ except as to the financial statements and other financial ~~and statistical information~~ data contained or incorporated by reference therein as to which such counsel need express no opinion) comply as to form in all material respects with ~~the~~ all applicable requirements of the Act, the Exchange Act and the ~~Trust Indenture Act~~ applicable instructions, rules and regulations of the ~~respective rules~~ Commission thereunder; the Registration Statement has become effective under the Act, and, to the best knowledge of such counsel, no proceedings for a stop order with respect thereto nor any notices objecting to its use have been instituted or are pending or threatened under Section 8 of the Act; and such counsel has no reason to believe that the Registration ~~Statement~~ Statement, at ~~the~~ its Effective ~~Date or at the Execution Time~~ Date, contained ~~any~~ an untrue statement of a material fact or omitted 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~~ Prospectus, as of the date of such opinion, includes ~~any~~ an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading~~; (viii) this Agreement has been duly authorized, executed and delivered by the Company;~~. (ix) ~~no consent, approval, authorization or order of any court or governmental agency or body is required for~~ The Company’s gas distribution activities are exempt from the consummation of the transactions contemplated herein except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the sale of the Notes as contemplated by this Agreement and such other approvals (specified in such opinion) as have been obtained;Natural Gas Act. (x) ~~neither the execution and delivery~~ The Public Service Commission of the ~~Indenture~~District of Columbia, the ~~issue~~ Public Service Commission of Maryland, the State Corporation Commission of Virginia and ~~sale up to an aggregate principal amount of $__________ of the Notes, nor the consummation of any~~ such other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or by-laws of the Company or the terms of any indenture or other agreement or instrument known to such counsel and to which the Company or any of its Subsidiaries is a party or bound or any judgment, order, regulation or decree known to such counsel to be applicable to the Company or any of its Subsidiaries of any court, regulatory body, administrative agency, governmental ~~body or arbitrator~~ entities having jurisdiction over the Company ~~or any of its Subsidiaries; (xi)~~ with respect to the ~~knowledge~~ issue and sale of the Notes have issued appropriate orders with respect to the issuance and sale of the Notes in accordance with this Agreement; such orders are still in full force and effect; the issuance and sale of the Notes in accordance with this Agreement conform with the terms of such counsel no holders of securities of the Company have rights to the registration of such securities under the Registration Statement; (xii) the information contained in the Prospectus under the caption "Certain Tax Considerations" is a fair and accurate summary of the principal Federal income tax consequences associated with the ownership of the Notes; and (xiii) the Company is exempt from all provisions of the 1935 Act except Section 9(a)(2) thereof. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Alabama or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Agent and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the date such opinion is renderedorders. (c) Each Agent shall have received from ~~Winthrop,~~ Hunton & ▇▇▇▇▇▇▇~~, ▇▇▇▇▇~~▇ ~~& ▇▇▇▇▇▇▇ (or such other counsel reasonably satisfactory to the Company and the Agents)~~LLP, counsel for the Agents, ~~such opinion or opinions~~an opinion, dated the Execution Time, with respect to the issuance and sale of the Notes, the Indenture, the Registration Statement, the Prospectus (together with any supplement thereto) ), and other related matters as the Agents may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to each Agent a certificate of the Company, signed by any of the Chairman of the ~~Board~~ Board, the President, the Chief Executive Officer, any Vice President having responsibilities for financial matters, the Chief Accounting Officer or the ~~president and the principal financial or accounting officer~~ Treasurer of the Company, dated the Execution Time, to the effect that the ~~signers~~ signer of such certificate ~~have reviewed~~ has carefully examined the Registration Statement, the Prospectus, any supplement to the Prospectus and this Agreement and that: (i) ~~the~~ The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the date ~~hereof~~ of such certificate with the same effect as if made on at the ~~date hereof~~ Execution Time and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied as a condition to the obligation of the Agents to solicit offers to purchase the Notes;. (ii) no No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company's ’s knowledge, threatened~~; and~~. (iii) ~~since~~ (1) Since the date of the ~~most recent~~ latest audited financial statements included or incorporated by reference in the ~~Prospectus (exclusive of any supplement thereto)~~Registration Statement and the Prospectus, there has not been no any material ~~adverse~~ loss or interference with the Company’s business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Registration Statement and the Prospectus and (2) since the respective dates as of which information is given in the Registration Statement and the Prospectus, there has not been any change in the ~~condition~~ capital stock (other than the effect of stock-based compensation) or long-term debt (other than any redemptions or purchases of First Mortgage Bonds or Medium Term Notes, normal amortization of debt premium and discount, repayments of bank or finance company borrowings and repurchases of commercial paper) of the Company or any material change, or any development involving a prospective material change, in or affecting the general affairs, management, financial ~~or other)~~position, ~~earnings~~stockholder’s equity, ~~business~~ results of operations or properties of the ~~Company and its subsidiaries~~Company, ~~whether or not arising from transactions in the ordinary course of business, except~~ otherwise than as set forth in or contemplated in the ~~Prospectus (exclusive of any supplement thereto)~~Registration Statement and the Prospectus. (e) At the Execution Time, ~~▇▇▇▇▇▇▇~~ Deloitte & ~~▇▇▇▇▇▇▇ (or such other accountants reasonably satisfactory to the Company and the Agents)~~ Touche LLP shall have furnished to each Agent a ~~letter or letters (which may refer to letters previously delivered to the Agents)~~letter, dated as of the Execution Time, in form and substance satisfactory to the Agents, confirming that ~~they are~~ it is an independent ~~accountants~~ registered public accounting firm within the meaning of the Act and the ~~Exchange Act~~ rules and regulations of the Public Company Accounting Oversight Board and the ~~respective~~ applicable published rules and regulations thereunder and stating in effect that: (i) ~~in their~~ In its opinion the consolidated financial statements and related supplemental schedules audited ~~financial statements, financial statement schedules~~ by it and ~~pro forma financial statements, if any,~~ included or incorporated by reference in the Registration Statement and the Prospectus ~~and reported on by them~~ comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the ~~related~~ published rules and ~~regulations;~~regulations thereunder. (ii) on On the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; the performance of the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in SAS No. 71, Interim Financial Information, ----------------------------- on the latest unaudited financial statements, if any, included or incorporated by reference in the ProspectusCompany; a reading of the minutes of the meetings of the ~~stockholders, directors, audit and finance committees~~ Board of Directors of the ~~Company and its subsidiaries~~Company; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to the date of the most recent audited financial statements included or incorporated in the Prospectus (it being understood that the foregoing procedures do not constitute an examination made in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter)Company, nothing came to ~~their~~ its attention which caused ~~them~~ it to believe that: (1) any unaudited condensed financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply ~~as to~~ in form in all material respects with the applicable accounting requirements of and with the ~~Exchange Act and the related~~ published rules and regulations ~~thereunder~~of the Commission with respect to financial statements included or incorporated in Quarterly Reports on Form 10-Q under the Exchange Act; ~~and~~ or that any material modifications should be made to said unaudited condensed financial ~~statements~~ statements, for them to be in conformity with accounting principles generally accepted ~~accounting principles~~in the United States of America; (2) with respect to the period subsequent to the date of the most recent financial statements ~~(other than any capsule information), audited or unaudited,~~ included or incorporated by reference in the Registration Statement and the ~~Prospectus~~Prospectus (the “Latest Date of Financials”), (A) there was any increase in long-term debt (other than normal amortization of debt premium and discount) or decrease in net assets or (B) there were any changes, at a specified date not more than five ~~business~~ days prior to the date of the letter, in the common ~~stock,~~ stock or non-redeemable serial preferred ~~stock, current liabilities or long-term debt of the Company and its subsidiaries or decreases in the total common stockholders' equity~~ stock of the Company as compared with the amounts shown on the most recent balance sheet included or incorporated by reference in the Registration Statement and the Prospectus, ; except in all instances for changes or ~~for~~ decreases that the Registration Statement and the Prospectus disclose have occurred or may occur and except as set forth in such letter; or (3) with respect to the period ~~from~~ subsequent to the ~~most recent fiscal year~~ Latest Date of ~~the Company~~ Financials to the date of the most recent available interim financial ~~statements (audited or unaudited) of the Company~~ statements, there were any ~~decreases~~decreases in operating revenues or net income applicable to common stock of the Company, as compared with the ~~corresponding~~ comparable period in of the preceding ~~year in operating revenues~~year, ~~operating income, other income or net income of the Company and its subsidiaries~~ except in all instances for ~~changes~~ decreases that the Registration Statement and the Prospectus disclose have occurred or ~~decreases~~ may occur and except as set forth in such letter~~, in which case the letter shall be accompanied by an explanation~~ . (iii) It has compared certain dollar amounts (or percentages derived from such dollar amounts) and other financial information specified by the ~~Company as~~ Agents (A) which appear in the Prospectus under the caption “Ratio of Earnings to Fixed Charges”, (B) which appear or are incorporated by reference in the ~~significance thereof unless said explanation is not deemed necessary~~ Company’s Annual Report on Form 10-K incorporated by ~~the Agents; or (3) the amounts included in any unaudited "capsule" information included or incorporated~~ reference in the Registration Statement and the Prospectus ~~do not agree with~~ under the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated in the Registration Statement and the Prospectus; (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement, including the information included or incorporated in Items 1, 2, 6, 7 and 11 of the Company's Annual Report on Form 10-K, incorporated in the Registration Statement and the Prospectus, and the information included in the "caption “Management's ’s Discussion and Analysis of Financial Condition and Results of Operations~~" included~~ ” or (C) which appear in any of the Company’s Quarterly Reports on Form 10-Q incorporated by reference in the ~~Company's Quarterly~~Registration Statement and the Prospectus under the captions “Management’s Discussion and Analysis of Financial Condition and Results of

Appears in 1 contract

Sources: Distribution Agreement (Washington Gas Light Co)

Conditions to the Obligations of the Agents. The ~~obligations~~ obligation of each ~~------------------------------------------- Agent~~ of the Agents to solicit offers to purchase the Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the ~~Execution Time~~date hereof, on as of the ~~Effective Date~~date of the effectiveness of any amendment to the Registration Statement (including the filing of any document incorporated by reference therein), ~~when~~ as of the date any supplement to the Prospectus is filed with the ~~Commission~~ SEC, as of each Acceptance Date and as of each Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); and no No stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have furnished to ~~each Agent~~ the Agents the opinion of ~~▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ (or such other~~ counsel ~~reasonably satisfactory~~ to ~~the Agents), counsel for~~ the Company, dated the ~~Execution Time~~date hereof, to the effect that: (i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the ~~State~~ state of ~~Alabama~~Missouri, with full corporate power and authority to own its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases ~~material~~ properties or conducts material business and wherein the failure to be so qualified would have a material adverse effect on the business of the Company and the subsidiaries taken as a whole; (ii) each of the Subsidiaries has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own its properties and conduct its business as described in the Prospectus, and Alabama Gas Corporation is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, except where the failure to so qualify ~~does~~ would not have a material adverse effect on the ~~business of the Company and its subsidiaries as a whole~~Company; (iii) all the outstanding shares of capital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances (with the exception of those encumbrances in the Indenture); (iv) the Company's authorized equity capitalization is as set forth in the Prospectus; and the Notes conform to the description thereof contained in the Prospectus (subject to the insertion in the Notes of the maturity dates, the interest rates and other similar terms thereof which will be described in supplements to the Prospectus as contemplated by the fourth sentence of Section 1(a) of this Agreement); (vii) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, ~~fraudulent conveyance,~~ insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or ~~other laws~~ affecting creditors' ~~rights~~ rights, generally from time to time in ~~effect,~~ effect and ~~by the availability~~ to general principles of ~~specific performance or of other equitable relief which is subject to the discretion of the court before which any proceeding may be brought~~equity); the Notes have been duly authorized and ~~up to an aggregate principal amount of $__________~~ established in conformity with the Indenture, and, when the terms of the Notes have been duly ~~authorized and~~established in conformity with the Indenture so as not to violate or conflict with any provisions of law or any agreement or instrument applicable to the Company or any of its properties, when the Notes have been duly executed by the proper officers of the Company, registered and duly authenticated ~~in accordance with the provisions of~~ pursuant to the Indenture and delivered to and paid for by the purchasers thereof, the Notes will constitute legal, valid and binding obligations of the Company entitled to the benefits of the ~~Indenture (other than the indemnity provisions contained in Section 8 hereof or Section 701 of the Indenture as to which such counsel need express no opinion)~~Indenture; (viiii) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, ~~authority or~~ authority, body or any arbitrator involving the ~~Company or any of its subsidiaries~~Company, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated ~~by reference~~ in the Prospectus describing any legal proceedings or material contracts or agreements relating to the Company fairly summarize such matters; (~~vii~~iv) the Registration Statement ~~has~~ and any amendments thereto have become effective under the Securities Act~~; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been or will be made in the manner and within the time period required by Rule 424(b)~~; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been ~~issued and~~ issued, no proceedings for that purpose have been instituted or threatened; , and the Registration ~~Statement and~~ Statement, the Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than the financial statements and other financial and statistical information contained therein as to which such counsel need express no opinion) ~~comply~~ complied as to form in all material respects with the applicable requirements of the Securities Act, the Exchange Act and the Trust Indenture Act and the respective rules and regulations thereunder; and such counsel has no reason to believe that the Registration ~~Statement~~ Statement, or any amendment thereof, at the ~~Effective Date~~ time it became effective or at the ~~Execution Time~~ date of this Agreement, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the ~~Prospectus includes~~ Prospectus, at its issue date or at the date of this Agreement, included any untrue statement of a material fact or ~~omits~~ omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (~~viii~~v) this Agreement has been duly authorized, executed and delivered by the Company; (ixvi) no order, consent, approval, ~~authorization~~ authorization, registration or ~~order~~ qualification of or with any ~~court or~~ governmental agency or body having jurisdiction over the Company or any of its properties is required for the issue and sale of the Notes or the consummation by the Company of the transactions contemplated ~~herein~~ by this Agreement or the Indenture, except such as have been, or will have been prior to the Closing Date, obtained under the Securities Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under ~~the blue sky~~ state securities or Blue Sky laws ~~of any jurisdiction~~ in connection with the sale and distribution of the ~~Notes as contemplated by this Agreement and such other approvals (specified in such opinion) as have been obtained;~~Notes; and (xvii) neither the execution and delivery of the ~~Indenture~~Indenture or this Agreement, the issue and sale ~~up to an aggregate principal amount of $__________~~ of the ~~Notes~~Notes (when the terms of the Notes have been duly established in conformity with the Indenture so as not to violate or conflict with any provisions of law or any agreement or instrument applicable to the Company or any of its properties and when the Notes have been duly executed by the proper officers of the Company, registered and duly authenticated pursuant to the Indenture and delivered to and paid for by the purchasers thereof), nor the consummation of any other of the transactions herein or therein contemplated nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach ~~or violation~~ of, or constitute a default ~~under any law or~~ under, the charter or by-laws of the Company or the terms of any indenture or other agreement or instrument known to such counsel and to which the Company is a party or by which the Company or any of its ~~Subsidiaries~~ assets is ~~a party or bound~~ bound, or any ~~judgment, order,~~ order or regulation ~~or decree~~ known to such counsel to be applicable to the Company ~~or any of its Subsidiaries~~ of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the ~~Company or any of its Subsidiaries; (xi)~~ Company. In rendering such opinion, such counsel may rely, as to the ~~knowledge of such counsel no holders of securities~~ execution of the ~~Company have rights to~~ Indenture by the ~~registration of such securities under the Registration Statement; (xii) the information contained in the Prospectus under the caption "Certain Tax Considerations" is~~ Trustee, upon a ~~fair and accurate summary~~ certificate of the ~~principal Federal income tax consequences associated with~~ Trustee setting forth the ~~ownership of the Notes; and (xiii) the Company is exempt from all provisions of the 1935 Act except Section 9(a)(2) thereof~~facts as to such execution. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the ~~State~~ state of ~~Alabama~~ Missouri or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to ~~counsel for~~ the ~~Agent~~ Agents and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials. ~~References to the Prospectus in this paragraph (b) include any supplements thereto at the date~~ In rendering such opinion ~~is rendered~~with respect to clause (vi) above, insofar as it relates to regulatory authorities in the states in which the Company operates, such counsel may rely on the opinions of local counsel satisfactory to such counsel. (c) ~~Each Agent~~ The Agents shall have received from ~~Winthrop, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇~~ Sullivan & ~~▇▇▇▇▇▇▇ (or such other counsel reasonably satisfactory to the Company and the Agents)~~Cromwell, counsel for the Agents, such opinion ~~or opinions~~▇▇ ▇▇▇▇▇ons, ~~dated~~ ▇▇▇▇▇ the ~~Execution Time~~date hereof, with respect to the issuance and sale of the Notes, the Indenture, the Registration Statement, the Prospectus ~~(together with any supplement thereto)~~ and other related matters as the Agents may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to ~~each Agent~~ the Agents a certificate ~~of the Company,~~ signed by ~~the~~ its Chairman of the Board or ~~the president~~ its President or a Vice President and ~~the principal financial~~ its Treasurer or ~~accounting officer of the Company, dated the Execution Time,~~ an Assistant Treasurer stating that after reasonable investigation and to the ~~effect that the signers~~ best of ~~such certificate have reviewed the Registration Statement, the Prospectus, any supplement to the Prospectus and this Agreement and that~~their knowledge: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the date hereof with the same effect as if made on the date ~~hereof and~~ hereof; the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied as a condition to the obligation of the Agents to solicit offers to purchase the Notes; and the conditions set forth in Paragraph 5(a) have been fulfilled; (ii) ~~no stop order suspending~~ as of the ~~effectiveness~~ date of the Prospectus, the Registration Statement ~~has been issued~~ and ~~no proceedings for that purpose have been instituted or,~~ the Prospectus did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the ~~Company's knowledge, threatened~~statements therein not misleading; and (iii) since the date of the most recent financial statements included or incorporated by reference in the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus, there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the ~~Prospectus (exclusive of any supplement thereto)~~Prospectus. (e) At The Company shall have furnished to the ~~Execution Time~~Agents (i) a letter of Ernst & Young LLP, ~~▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (or such other accountants reasonably satisfactory~~ addressed to the Board of Directors of the Company and the ~~Agents) shall have furnished to each Agent a letter or letters (which may refer to letters previously delivered to~~ Agents and dated the ~~Agents), dated as~~ later of the ~~Execution Time, in form and substance satisfactory to the Agents, confirming that they are independent accountants within the meaning~~ effective date of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and stating in effect that: (i) in their opinion the audited financial statements, financial statement schedules and pro forma financial statements, if any, included or incorporated by reference in the Registration Statement ~~and~~ or the ~~Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements~~ date of the ~~Act and the Exchange Act and the related published rules and regulations; (ii) on the basis of a reading~~ filing of the Company's latest ~~unaudited financial statements made available by the Company and its subsidiaries; the performance~~ Annual Report on Form 10-K, of the ~~procedures specified by~~ type described in the American Institute of Certified Public ~~Accountants for~~ Accountants' Statement on Auditing Standards No. 72 ("SAS 72") and covering such financial statement items of the Company as the Agents may reasonably have requested; (ii) a ~~review~~ letter of ~~interim~~ Ernst & Young LLP, addressed to the Agents and dated the dat▇ ▇▇▇eof, stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information ~~as described in SAS No. 71, Interim Financial Information, ----------------------------- on the latest unaudited financial statements, if any, included or incorporated by reference~~ is given in the Prospectus; , as of a ~~reading~~ date not more than five business days prior to the date of such letter), the ~~minutes~~ conclusions and findings of such firm with respect to the ~~meetings of the stockholders, directors, audit~~ financial information and ~~finance committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting~~ other matters of the Company covered by its letter referred to in subclause (i) above and ~~its subsidiaries as to transactions~~ confirming in all material respects the conclusions and ~~events subsequent to~~ findings set forth in such prior letter; and (iii) a letter, dated the date hereof, of ~~the most recent~~ any other accountants that have audited financial statements included or incorporated in the Prospectus (it being understood that the foregoing procedures do not constitute an examination made in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter), nothing came to their attention which caused them to believe that: (1) any unaudited financial statements included or incorporated by reference in the Registration Statement and Prospectus, addressed to the ~~Prospectus do not comply as to form in all material respects with the applicable accounting requirements~~ Agents, of the ~~Exchange Act~~ type described in SAS 72 and covering such financial statement items as the ~~related published rules and regulations thereunder; and that any material modifications should be made~~ Agents may reasonably request. References to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; (2) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated in the Registration Statement and the ~~Prospectus, there were any changes,~~ Prospectus in this paragraph (e) are to such documents as amended and supplemented at ~~a specified date not more than five business days prior to~~ the date of the letter, in the common stock, preferred stock, current liabilities or long-term debt of the Company and its subsidiaries or decreases in the total common stockholders' equity of the Company as compared with the amounts shown on the most recent balance sheet included or incorporated in the Registration Statement and the Prospectus, or for the period from the most recent fiscal year of the Company . (f) Subsequent to the ~~date~~ respective dates as of the most recent available financial statements (audited or unaudited) of the Company there were any decreases, as compared with the corresponding period in the preceding year in operating revenues, operating income, other income or net income of the Company and its subsidiaries except in all instances for changes or decreases set forth in such letter, in which ~~case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation~~ information is ~~not deemed necessary by the Agents; or (3) the amounts included in any unaudited "capsule" information included or incorporated~~ given in the Registration Statement and the Prospectus ~~do not agree~~ (with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated in the Registration Statement and the Prospectus; (iiirespect to Section 6(c) ~~they have performed certain other specified procedures~~ hereof, only as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Prospectus ~~and in Exhibit 12 to~~ are amended or supplemented through the ~~Registration Statement, including the information included or incorporated in Items 1, 2, 6, 7 and 11~~ date of the ~~Company's Annual Report on Form 10-K~~Terms Agreement) there shall not have been any change, ~~incorporated~~ or any development involving a prospective change, in or affecting the business or properties of the Company and its principal subsidiaries the effect of which is, in the reasonable judgment of the Agents, so material and adverse as to make it impractical or inadvisable to proceed with the soliciting of offers to purchase the Notes as contemplated by the Registration Statement and the ~~Prospectus~~Prospectus (or, ~~and the information included~~ in the ~~"Management's Discussion~~ case of a Terms Agreement, to proceed with the offering or the delivery of the Notes to be purchased as contemplated by the Terms Agreement). (g) Prior to the date hereof, the Company shall have furnished to the Agents such further information, certificates and ~~Analysis~~ documents as the Agents may reasonably request. If any of ~~Financial Condition~~ the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and ~~Results~~ as provided in this Agreement, or if any of ~~Operations" included~~ the opinions and certificates mentioned above or ~~incorporated~~ elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the ~~Company's Quarterly~~Agents, this Agreement and all obligations of the Agents hereunder may be canceled at any time by the Agents. Notice of such cancellation shall be given to the Company in writing or by telephone or telegraph confirmed in writing. The documents required to be delivered by this Section 5 shall be delivered at the office of Sullivan & Cromwell, counsel for the Agents, at 125 Broad Street, ▇▇▇ ▇▇rk, ▇▇ ▇▇▇04, or such other location as t▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇ ▇ate hereof.

Appears in 1 contract

Sources: Selling Agency Agreement (Southwestern Bell Telephone Co)

Conditions to the Obligations of the Agents. The ~~obligations~~ obligation of each ~~-------------------------------------------~~ Agent to solicit offers to purchase the Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, on the Effective Date, when any supplement to the Prospectus is filed with the ~~Commission and~~ Commission, as of each Closing ~~Date~~Date and on the date of each solicitation, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration ~~Statement~~ Statement, or any part thereof, shall have been issued and no proceedings for that purpose shall have been instituted or threatened, or, to the knowledge of the Company or any Agent, be contemplated by the Commission. (b) The Company shall have furnished to each Agent the opinion of Cozen O'Connor, Philadelphia, Penn▇▇▇▇▇▇▇, ▇~~▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ (or such other counsel reasonably satisfactory to the Agents)~~, counsel for the Company, dated the Execution Time, substantially to the ~~effect~~ effect, as appropriate, that (except that:, after the Substitution Date, such opinion need not be given with respect to the New Supplement, the Mortgage, the Mortgage Trustee or the Pledged Bond): (ia) ~~the~~ The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of ~~Alabama~~New Jersey, with full corporate power and corporate authority to own its properties and conduct its business as described in the Prospectus. To such counsel's knowledge, the nature of the business conducted by the Company and the location and character of the property owned or leased by it do not require its qualification as a foreign corporation in any jurisdiction. The Company holds all franchises, certificates of public convenience, licenses and permits necessary to carry on the utility business in which it is engaged; (b) The Subsidiary has been duly organized and is validly existing as a statutory trust in good standing under the laws of the jurisdiction in which it is organized, with full power and authority to own its properties and conduct its business as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business and wherein the failure to be so qualified would have a material adverse effect on the business of the Company and the subsidiaries taken as a whole; (ii) each of the Subsidiaries has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own its properties and conduct its business as described in the Prospectus, and Alabama Gas Corporation is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, except where the failure to so qualify does not have a material adverse effect on the business of the Company and its subsidiaries as a whole; (iii) all All the outstanding shares of ~~capital~~ common stock of ~~each~~ the Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of ~~capital~~ common stock of the ~~Subsidiaries~~ Subsidiary are owned directly by the Company ~~either directly or through wholly owned subsidiaries~~ free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or ~~encumbrances (with the exception of those encumbrances in the Indenture)~~encumbrances; (iviii) ~~the~~ The Company's authorized equity capitalization is as set forth in the ~~Prospectus~~Registration Statement; and the Notes and the Pledged Bond conform to the ~~description~~ descriptions thereof contained in the Prospectus (subject to the insertion in the Notes of the maturity dates, the interest rates and other similar terms thereof which will be described in supplements to the Prospectus as contemplated by the ~~fourth~~ last sentence of Section ~~1(a~~l(a) of this Agreement); (viv) Each of the ~~Indenture~~ Indenture, the New Supplement, the Notes and the Pledged Bond has been duly ~~authorized, executed~~ authorized by all necessary corporate action on the part of the Company (no shareholder approval being required with respect to such authorization) and ~~delivered,~~ has been duly ~~qualified under~~ executed and delivered by authorized officers of the ~~Trust Indenture Act~~Company, and ~~constitutes a legal~~the Indenture, the Mortgage (including the New Supplement), the Notes and the Pledged Bond are each valid and binding ~~instrument~~ instruments enforceable against the Company in accordance with ~~its~~ their respective terms except (~~subject, as to enforcement of remedies, to applicable~~ A) that the enforceability thereof may be limited by bankruptcy~~, reorganization, fraudulent conveyance~~, insolvency, ~~moratorium~~ moratorium, reorganization or other similar laws relating to or affecting the enforcement of creditors' or mortgagees' rights ~~generally from time~~ generally, (B) to ~~time in effect, and by~~ the extent that the availability of the remedy of specific performance or ~~of other equitable~~ injunctive relief ~~which~~ is subject to the discretion of the court before which any proceeding therefor may be brought, (C) that rights of acceleration arising from defaults other than payment defaults and the availability of equitable remedies may be limited by equitable principles of general applicability, (D) general principles of equity (whether asserted at a proceeding at law or in equity), (E) the discretion of the court before which any proceeding therefor may be brought, and (F) that the laws of the State of New Jersey may limit certain remedies provided therein, but none of such principles or limitations will, in the opinion of such counsel, materially interfere with the practical realization of the benefits of the security intended to be provided by the Mortgage, and, in the opinion of such counsel, the Mortgage contains adequate provisions for enforcing payment of the Pledged Bond and realizing upon such security; and ~~up to an aggregate principal amount of $__________ of~~ the Notes ~~have been duly authorized and,~~ when executed and authenticated in accordance with the provisions of the Indenture and the Procedures and delivered to by the Trustee and paid for by the purchasers thereof, will constitute legal, valid and binding obligations of the Company entitled to the benefits and the security of the Indenture except, in each case, as enforceability may be limited by bankruptcy, reorganization, moratorium, insolvency or other laws now or hereafter in effect relating to or affecting mortgagees' or other creditors' rights or general principles of equity (whether asserted in a proceeding at law or in equity); (v) The Pledged Bond is entitled to the benefits and security intended to be granted and afforded by the Mortgage, and is so secured equally and ratably with all other ~~than~~ bonds outstanding under the ~~indemnity provisions contained in Section 8 hereof or Section 701 of the Indenture~~ Mortgage (except as to ~~which such counsel need express no opinion~~any sinking or other fund established for the bonds of any particular series); (vi) SJI which owns all of the common stock of the Company, is a "holding company" and the Company is a "subsidiary" of a "holding company" as such terms are defined under the 1935 Act, but SJI, having filed with the Commission an annual exemption statement for the current year pursuant to Rule 2 promulgated under the 1935 Act, and the Company are exempt from all provisions of the 1935 Act except Section 9(a)(2) thereof, relating to the acquisition of securities of a "public utility company;" (vii) To the knowledge of such counsel, (a) there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body ~~or any arbitrator~~ involving the Company or ~~any of~~ its ~~subsidiaries~~Subsidiary not disclosed in the Prospectus, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus~~, and~~ ; (b) there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit, which is not described or filed as required; and (c) the statements included or incorporated ~~by reference~~ in the Prospectus describing any legal proceedings or material contracts or agreements relating to the Company fairly summarize such matters; (~~vii~~viii) The Registration Statement and the Prospectus comply, and any document incorporated by reference into the Prospectus at the time it was filed complied, in all material respects as to form with the requirements of the Act, the Exchange Act, the rules and regulations under the Exchange Act and the rules and regulations under the Act (except that no opinion need be expressed as to (a) financial statements, schedules and other financial and statistical data contained in the Registration Statement or the Prospectus or incorporated by reference therein; (b) the Trustee's Statement of Eligibility on Form T-1; or (c) information relating to Ambac Assurance Company, if any, included or incorporated by reference in the Registration Statement or Prospectus; (ix) The Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been ~~or will be~~ made in the manner ~~and~~ and, to such counsel's knowledge, within the time period required by Rule 424(b); to the knowledge of such counsel, (a) no stop order suspending the effectiveness of the Registration Statement has been ~~issued~~ issued, and (b) no proceedings for that purpose have been instituted or threatened; and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; and such counsel has no reason to believe that the Registration Statement at the Effective Date or at the Execution Time 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 includes any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (~~viii~~x) ~~this~~ This Agreement has been duly authorized, executed and delivered by the Company, and the Company has full corporate power and corporate authority to enter into the Agreement; (ixxi) no No consent, approval, authorization or order of any court or governmental agency or body (other than authorization from the New Jersey Board of Public Utilities, referred to below) is required for the consummation of the transactions contemplated herein except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the sale of the Notes as contemplated by this Agreement and such other approvals (specified in such opinion) as have been obtained. The BPU has entered an order, dated July 24, 2002, authorizing the issuance and sale of the Notes and the issuance of the Pledged Bond by the Company on terms and conditions not inconsistent with the terms and conditions set forth in or contemplated by this Agreement. The Notes, when issued and sold by the Company, and the Pledged Bond, when issued by the Company, will comply in all material respects with the terms, conditions and limitations set forth in such order. To such counsel's knowledge, such order is in full force and effect and has not been amended, supplemented or otherwise modified without the consent of the Agents and the period has expired during which any proceeding to review, suspend, limit, modify, restrict or revoke such order may be instituted as of right by any Person other than the BPU; (xxii) ~~neither~~ Neither the execution and delivery of the ~~Indenture~~Indenture or the New Supplement, the issue and sale ~~up to an aggregate principal amount of $__________~~ of the ~~Notes~~Notes or the issuance of the Pledged Bond, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof ~~will~~ does or will, as the case may be, conflict with, result in a breach or violation of, or constitute a default ~~under~~ under, any law or the charter or ~~by-laws~~ bylaws of the Company or the terms of any indenture or other agreement or instrument known to such counsel and to which the Company or ~~any of~~ its ~~Subsidiaries~~ Subsidiary is a party or ~~bound~~ bound, or any judgment, order, decree or regulation ~~or decree~~ known to such counsel to be applicable to the Company or ~~any of~~ its ~~Subsidiaries~~ Subsidiary of any court, regulatory body, administrative agency, or governmental body ~~or arbitrator~~ having jurisdiction over the Company or its Subsidiary; and except for the issuance of the Notes and the Pledged Bonds which are secured by the lien of the Mortgage, the execution and delivery of this Agreement by the Company, the consummation by the Company of the transactions therein contemplated and the compliance by the Company with the terms of this Agreement do not and will not result in the creation or imposition of any other lien, charge or encumbrance upon any of the assets of the Company or its ~~Subsidiaries~~Subsidiary pursuant to the terms or provisions of any of the aforesaid documents, instruments or matters; (xixiii) To the knowledge of such counsel, neither the Company nor its Subsidiary is in violation of its organizational documents or in default (nor has an event occurred which with notice or lapse of time or both would constitute a default or acceleration) in the performance of any obligation, agreement or condition contained in any indenture, mortgage, deed of trust, voting trust agreement, loan agreement, bond, debenture, note agreement or other evidence of indebtedness, lease, contract or other agreement or instrument known to such counsel to which the Company or its Subsidiary is a party or by which it or its properties is bound or affected, except for defaults which are not reasonably expected to have a materially adverse effect on the business, properties, condition (financial or otherwise) or results of operations of the Company and its Subsidiary considered as one enterprise, and neither the Company nor its Subsidiary is in violation of any judgment, ruling, decree, order, franchise, license or permit known to such counsel or, to the knowledge of such ~~counsel~~ counsel, any statute, rule or regulation of any court or other governmental agency or body applicable to the business or properties of the Company or its Subsidiary, in any such case which violation or default would be reasonably expected to have a materially adverse effect on the business, properties, condition (financial or otherwise) or results of operations of the Company or its Subsidiary considered as one enterprise; (xiv) To the knowledge of such counsel, no holders of securities of the Company have ~~rights~~ the right to ~~the~~ require registration of ~~such~~ any of the Company's securities ~~under~~ in connection with the filing of the Registration Statement; (~~xii~~xv) ~~the information contained~~ All descriptions in the Prospectus ~~under~~ of statutes, regulations or legal or governmental proceedings are accurate and fairly present the ~~caption "Certain Tax Considerations" is a fair and accurate summary of the principal Federal income tax consequences associated with the ownership of the Notes; and~~information required to be shown; (xiii) the Company is exempt from all provisions of the 1935 Act except Section 9(a)(2) thereof. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Alabama or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Agent and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the date such opinion is rendered. (c) Each Agent shall have received from Winthrop, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (or such other counsel reasonably satisfactory to the Company and the Agents), counsel for the Agents, such opinion or opinions, dated the Execution Time, with respect to the issuance and sale of the Notes, the Indenture, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Agents may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (dxvi) The Company ~~shall have furnished~~ has good and marketable title in fee simple to ~~each Agent a certificate of~~ all the ~~Company, signed by~~ real property and good and merchantable title to all the ~~Chairman of~~ personal property specifically or generally described or referred to in the ~~Board or the president and the principal financial or accounting officer of the Company, dated the Execution Time,~~ Mortgage as subject to the ~~effect that~~ lien thereof, except properties expressly excepted therefrom and properties properly released from the ~~signers~~ lien thereof pursuant to the terms thereof; the description in the Mortgage of such ~~certificate have reviewed the Registration Statement, the Prospectus, any supplement~~ properties is legally sufficient to ~~the Prospectus~~ constitute a lien thereon; and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the date hereof with the same effect as if made on the date hereof and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied as a condition to the obligation of the Agents to solicit offers to purchase the Notes; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Companysuch counsel's knowledge, ~~threatened; and (iii) since~~ such properties constitute substantially all the date of the most recent financial statements included in the Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or permanent physical properties of the Company and ~~its subsidiaries~~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 Subdivision A of Section 3.04 of the Mortgage); (xvii) The Mortgage and the UCC-1 financing statement constitute a valid first mortgage lien or first security interest of record upon all real and personal property of the Company (including easements, ~~whether~~ rights-of-way, and other rights relating to real estate and franchises) specifically or ~~not arising from transactions~~ generally described or referred to in the ~~ordinary course~~ Mortgage as subject to the lien thereof and owned by the Company at the time of ~~business~~the actual issue of the Pledged Bond, subject to no liens or encumbrances other than "excepted encumbrances" (as defined in Subdivision A of Section 3.04 of the Mortgage); (xviii) The Mortgage and the UCC-1 financing statement have been duly filed for recording and filing in such manner and in such places as are required by law in order to establish, preserve, and protect the first lien of the Mortgage on all real and personal property of the Company specifically or generally described or referred to in such instruments as subject to the lien of the Mortgage (except ~~as set forth~~ that (a) additional filings and recordings of the Mortgage will be required if property is acquired by the Company subsequent to the date hereof which is located in a county where the Mortgage has not previously been filed for recording and (b) the Mortgage will not be a first lien on property hereafter acquired by the Company which at the time of acquisition is subject to prior liens or ~~contemplated~~ other encumbrances), and, to the knowledge of such counsel, all taxes, fees and other charges payable in ~~the Prospectus (exclusive of any supplement thereto)~~connection therewith have been paid in full. (exix) ~~At the Execution Time~~In addition, ~~▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (or~~ such counsel shall state that it has participated in conferences with officers and other ~~accountants reasonably satisfactory to the Company and the Agents) shall have furnished to each Agent a letter or letters (which may refer to letters previously delivered to the Agents), dated as~~ representatives of the ~~Execution Time~~Company, ~~in form and substance satisfactory to~~ representatives of the ~~Agents, confirming that they are~~ independent accountants ~~within the meaning~~ of the ~~Act~~ Company, representatives of the Agents and counsel for the ~~Exchange Act and~~ Agents at which the respective applicable published rules and regulations thereunder and stating in effect that: (i) in their opinion the audited financial statements, financial statement schedules and pro forma financial statements, if any, included or incorporated by reference in contents of the Registration Statement and the Prospectus and ~~reported on by them comply as to form in all material respects with~~ related matters were reviewed and discussed and, although such counsel has not independently verified and is not passing upon, and does not assume any responsibility for, the ~~applicable accounting requirements~~ accuracy, completeness or fairness of the ~~Act and~~ statements contained in the ~~Exchange Act and~~ Registration Statement or the ~~related published rules and regulations; (ii)~~ Prospectus or any documents incorporated, or deemed to be incorporated, by reference therein on the basis of ~~a reading of~~ the latest unaudited financial statements made available by the Company and its subsidiaries; the performance of the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in SAS No. 71foregoing, Interim Financial Information, ----------------------------- on the latest unaudited financial statements, if any, included or incorporated by reference in the Prospectus; a reading of the minutes of the meetings of the stockholders, directors, audit and finance committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who no facts have ~~responsibility for financial and accounting matters of the Company and its subsidiaries as~~ come to transactions and events subsequent to the date of the most recent audited financial statements included or incorporated in the Prospectus (it being understood that the foregoing procedures do not constitute an examination made in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such ~~letter), nothing came to their~~ counsel's attention which caused them to believe that: (1) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; and that any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; (2) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated in the Registration Statement and the Prospectus, there were any changes, at a specified date not more than five business days prior to the date of the letter, in the common stock, preferred stock, current liabilities or long-term debt of the Company and its subsidiaries or decreases in the total common stockholders' equity of the Company as compared with the amounts shown on the most recent balance sheet included or incorporated in the Registration Statement and the Prospectus, or for the period from the most recent fiscal year of the Company to the date of the most recent available financial statements (audited or unaudited) of the Company there were any decreases, as compared with the corresponding period in the preceding year in operating revenues, operating income, other income or net income of the Company and its subsidiaries except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Agents; or (3) the amounts included in any unaudited "capsule" information included or incorporated in the Registration Statement and the Prospectus do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated in the Registration Statement and the Prospectus; (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement, including the information included or incorporated in Items 1, 2, 6, 7 and 11 of the Company's Annual Report on Form 10-K, incorporated in the Registration Statement and the Prospectus, and the information included in the "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated in the Company's Quarterly

Appears in 1 contract

Sources: Distribution Agreement (South Jersey Gas Co/New)

Conditions to the Obligations of the Agents. The obligations of each ~~-------------------------------------------~~ Agent to solicit offers to purchase the Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, on the Effective Date, when any supplement to the Prospectus is filed with the Commission and as of each Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:: 16 16 (a) If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement as amended shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have furnished to each Agent the opinion of ~~▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ (~~either the General Counsel or ~~such other counsel reasonably satisfactory to the Agents), counsel~~ any Associate or Assistant General Counsel for the Company, dated the Execution Time, to the effect that: (i) the Company ~~has been~~ is a corporation duly ~~incorporated and is~~ incorporated, validly existing ~~as a corporation~~ and in good standing under the laws of the State of ~~Alabama~~Ohio, with full corporate power and authority to own its properties and conduct ~~its~~ the business conducted by it as described in the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing ~~under the laws of each~~ in any jurisdiction ~~which requires such qualification wherein~~ where it ~~owns~~ has material property or leases material properties or conducts material business and wherein the failure to be so qualified would have a material adverse effect on the business of the Company and the subsidiaries taken as a whole; (ii) each of the Subsidiaries has been duly organized and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own its properties and conduct its business as described in the Prospectusassets, and ~~Alabama Gas Corporation~~ is duly qualified to do business as a foreign corporation and is in good standing ~~under~~ in each other jurisdiction where the ~~laws~~ character of ~~each jurisdiction which~~ its properties or the nature of its business requires such qualification ~~wherein it owns or leases material properties or conducts material business,~~ (except where the failure to so qualify ~~does~~ would not have a material adverse effect on the financial condition, or the earnings, business affairs or business prospects of the Company and its ~~subsidiaries~~ Subsidiaries taken as a whole); and the Company is in good standing in the State of California and the Commonwealth of Virginia; (iii) all the outstanding shares of capital stock of each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances (with the exception of those encumbrances in the Indenture); (ivii) the Company's authorized equity capitalization is as set forth in the Prospectus; and the Notes conform to the description thereof contained in the Prospectus (subject to the insertion in the Notes of the maturity dates, the interest rates and other similar terms thereof which will be described in supplements to the Prospectus as contemplated by the fourth sentence of Section 1(a) of this Agreement); (viii) ~~the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against~~ (if the Company ~~in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, fraudulent conveyance, insolvency, moratorium~~ has one or other laws affecting creditors' rights generally from time to time in effect, and by the availability of specific performance or of other equitable relief which is subject to the discretion of the court before which any proceeding may be brought); and up to an aggregate principal amount of $__________ of the Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the purchasers thereof, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture (other than the indemnity provisions contained in Section 8 hereof or Section 701 of the Indenture as to which such counsel need express no opinion); (vi) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated by reference in the Prospectus describing material contracts or agreements relating to the Company fairly summarize such matters; (vii) the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been or will be made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened; and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; and such counsel has no reason to believe that the Registration Statement more Significant Subsidiaries at the ~~Effective Date or at the Execution Time contained any untrue statement~~ date 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 includes any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (viii) this Agreement has been duly authorized, executed and delivered by the Company; (ix) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated herein except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the sale of the Notes as contemplated by this Agreement and such other approvals (specified in such opinion) as have been obtained; (x) neither the execution and delivery of the Indenture, the issue and sale up to an aggregate principal amount of $__________ of the Notes, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or constitute a default under any law or the charter or by-laws of the Company or the terms of any indenture or other agreement or instrument known to such counsel and to which the Company or any of its Subsidiaries is a party or bound or any judgment, order, regulation or decree known to such counsel to be applicable to the Company or any of its Subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any of its Subsidiaries; (xi) to the knowledge of such counsel no holders of securities of the Company have rights to the registration of such securities under the Registration Statement; (xii) the information contained in the Prospectus under the caption "Certain Tax Considerations" is a fair and accurate summary of the principal Federal income tax consequences associated with the ownership of the Notes; and (xiii) the Company is exempt from all provisions of the 1935 Act except Section 9(a)(2) thereof. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Alabama or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Agent and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) include any supplements thereto at the date such opinion is rendered. (c) Each Agent shall have received from Winthrop, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (or such other counsel reasonably satisfactory to the Company and the Agents), counsel for the Agents, such opinion or opinions, dated the Execution Time, with respect to the issuance and sale of the Notes, the Indenture, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Agents may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to each Agent a certificate of the Company, signed by the Chairman of the Board or the president and the principal financial or accounting officer of the Company, dated the Execution Time, to the effect that the signers of such certificate have reviewed the Registration Statement, the Prospectus, any supplement to the Prospectus and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the date hereof with the same effect as if made on the date hereof and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied as a condition to the obligation of the Agents to solicit offers to purchase the Notes; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Prospectus (exclusive of any supplement thereto), there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto). (e) At the Execution Time, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ (or such other accountants reasonably satisfactory to the Company and the Agents) shall have furnished to each Agent a letter or letters (which may refer to letters previously delivered to the Agents), dated as of the Execution Time, in form and substance satisfactory to the Agents, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and stating in effect that: (i) in their opinion the audited financial statements, financial statement schedules and pro forma financial statements, if any, included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations; (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; the performance of the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in SAS No. 71, Interim Financial Information, ----------------------------- on the latest unaudited financial statements, if any, included or incorporated by reference in the Prospectus; a reading of the minutes of the meetings of the stockholders, directors, audit and finance committees of the Company and its subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to the date of the most recent audited financial statements included or incorporated in the Prospectus (it being understood that the foregoing procedures do not constitute an examination made in accordance with generally accepted auditing standards and they would not necessarily reveal matters of significance with respect to the comments made in such letter), nothing came to their attention which caused them to believe that: (1) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published rules and regulations thereunder; and that any material modifications should be made to said unaudited financial statements for them to be in conformity with generally accepted accounting principles; (2) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated in the Registration Statement and the Prospectus, there were any changes, at a specified date not more than five business days prior to the date of the letter, in the common stock, preferred stock, current liabilities or long-term debt of the Company and its subsidiaries or decreases in the total common stockholders' equity of the Company as compared with the amounts shown on the most recent balance sheet included or incorporated in the Registration Statement and the Prospectus, or for the period from the most recent fiscal year of the Company to the date of the most recent available financial statements (audited or unaudited) of the Company there were any decreases, as compared with the corresponding period in the preceding year in operating revenues, operating income, other income or net income of the Company and its subsidiaries except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Agents; or (3) the amounts included in any unaudited "capsule" information included or incorporated in the Registration Statement and the Prospectus do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated in the Registration Statement and the Prospectus; (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement, including the information included or incorporated in Items 1, 2, 6, 7 and 11 of the Company's Annual Report on Form 10-K, incorporated in the Registration Statement and the Prospectus, and the information included in the "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated in the Company's Quarterly17 17

Appears in 1 contract

Sources: Distribution Agreement (TRW Inc)

Common use of Conditions to the Obligations of the Agents Clause in Contracts