Conditions to the Obligations of the Agents. The obligations of any 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 and the Guarantor contained herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement (including the filing of any document incorporated by reference therein), as of the date of any supplement to the Prospectus and as of each Settlement Date, to the accuracy of the statements of the Company and the Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantor of their respective obligations hereunder and to the following additional conditions: (a) No stop order suspending the effectiveness of the Registration 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 and the Guarantor shall have furnished to the agents the opinion or opinions of ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Company and the Guarantor, dated the date hereof, substantially as set forth below, with such additional qualifications and exceptions as shall be acceptable to the agents and their counsel: (i) Each of the Company and the Guarantor is a corporation duly incorporated, validly existing and in good standing under the laws of the state of its incorporation and has the corporate power and authority to own its properties and to conduct its business as described in the Prospectus. (ii) The Company and the Guarantor have the corporate power and authority to enter into this Agreement and the Terms Agreement (if applicable), and this Agreement and the Terms Agreement (if applicable) have been duly and validly authorized, executed and delivered by the Company and the Guarantor, respectively. (iii) The form and general terms of the Notes have been duly and validly authorized and established in conformity with the provisions of the Indenture by all necessary corporate action by the Company, and when the particular terms of the Notes have been duly established in accordance with the provisions of the Indenture, the Procedures and the resolutions of the Board of Directors of the Company and such Notes have been duly executed, authenticated and delivered against payment therefor in accordance with the provisions of the Indenture, the Procedures and this Agreement, will constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and the terms of the Indenture, and the holders of the Notes will be entitled to the benefits of the Indenture; and the Indenture has been duly authorized, executed and delivered by each of the Company and Guarantor, has been qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against each of the Company and the Guarantor in accordance with its terms. (iv) The Guarantees, in the forms certified to by an authorized officer of the Guarantor, have been duly and validly authorized by all necessary corporate action by the Guarantor and, upon due issuance, authentication and delivery of the related Notes and due endorsement of the Guarantees, the Guarantees will have been duly executed, issued and delivered and will constitute the legal, valid and binding obligations of the Guarantor enforceable against the Guarantor in accordance with their terms and the terms of the Indenture, and the holders of the Notes upon which the Guarantees are endorsed will be entitled to the benefits of the Indenture. (v) The Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened and the Registration Statement and the Prospectus (other than (i) the financial statements and other financial and statistical information contained therein and (ii) the Statement of Eligibility on Form T-1 filed as an exhibit thereto, as to which such counsel need express no opinion), as of their respective effective or issue dates, as the case may be, appear on their face to be responsive as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations and the Trust Indenture Act and the rules and regulations of the Commission thereunder. (vi) No consent, approval, authorization or order of any United States federal or New York, California or (with respect to matters arising under the Delaware General Corporation Law) Delaware court or governmental agency or body is required for the consummation of the transactions contemplated by this Agreement or the Indenture, except such as have been obtained under the Act and such as may be required under the securities and blue sky laws, rules or regulations of any jurisdiction in connection with the purchase and distribution of the Notes and related Guarantees by the agents and such other approvals as have been obtained. (vii) Neither the issue and sale of the Notes (in the forms certified to by an authorized officer of the Company), the compliance by the Company and the Guarantor with all the provisions of this Agreement, the Indenture, the Notes or the Guarantees (in the form certified to by an authorized officer of the Guarantor), the consummation of the transactions herein or therein contemplated nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under the charter or bylaws of the Company or the Guarantor or the terms of any indenture or other agreement or instrument filed with the Commission and to which the Company or the Guarantor or any of the Guarantor's subsidiaries is a party or bound, or any order, decree, judgment or regulation (other than any federal or state securities or blue sky laws, rules or regulations) known to such counsel to be applicable to the Company or the Guarantor or any of the Guarantor's subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Guarantor or any of the Guarantor's subsidiaries. (viii) To the best knowledge of such counsel, no holders of securities of the Company or the Guarantor have rights to the registration of such securities under the Registration Statement. (ix) Such counsel confirms (i) that the statements in the Prospectus under the caption "Federal Income Tax Consequences", insofar as such statements constitute a summary of the legal matters referred to therein, fairly present the information disclosed therein in all material respects, (ii) the conformity in all material respects of the Notes (in the forms certified to by an authorized officer of the Company) to the statements relating thereto in the Prospectus, and (iii) the conformity in all material respects of the Indenture and the Guarantees to the statements relating thereto in the Prospectus under the captions "Description of Notes" and "Description of Debt Securities of Countrywide Home Loans and Related Guarantees of Countrywide Credit Industries." Such counsel shall also state that, in the course of their engagement to represent or advise the Company and the Guarantor professionally, they have not become aware of any pending legal proceeding before any court or administrative agency or authority or any arbitration tribunal, nor have they devoted substantive attention in the form of legal representation as to any current overtly threatened litigation against or directly affecting the Company or its subsidiaries or the Guarantor or its subsidiaries, in each case that is required to be described in the Registration Statement or the Prospectus and is not so described. In making the foregoing statement, they shall endeavor, to the extent they believe necessary, to determine from lawyers currently in their firm who have performed substantive legal services for the Company or the Guarantor, whether such services involved substantive attention in the form of legal representation concerning pending legal proceedings or overtly threatened litigation of the nature referred to above. Beyond that, they need not make any review, search or investigation of public files or records or files or records of the Company or the Guarantor, or of their respective transactions, or any other investigation or inquiry with respect to the foregoing statement. Such counsel shall also state that in the course of the preparation by the Company, the Guarantor and their counsel of the Registration Statement and Prospectus (other than the Incorporated Documents (as defined below)), such counsel attended conferences with certain of the officers of, and the independent public accountants for, the Company and the Guarantor, at which the Registration Statement and Prospectus were discussed. Given the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process, such counsel need not pass upon and need not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus including the Incorporated Documents, except as specifically described in the opinion set forth in paragraph (ix) above. Subject to the foregoing and on the basis of the information such counsel gained in the performance of the services referred to above, including information obtained from officers and other representatives of the Company and Guarantor, such counsel shall state that no facts have come to such counsel's attention that have caused it to believe that the Registration Statement, at the time it became effective, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, at its date or at the date hereof, included or includes, as the case may be, any untrue statement of material fact or omitted or omits, as the case may be, 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 such counsel need not express a view or belief with respect to (i) the financial statements, the related notes and schedules thereto or other financial and statistical data included or incorporated by reference in the Registration Statement and Prospectus or (ii) any part of the Registration Statement which shall constitute a Statement of Eligibility on Form T-1 under the Trust Indenture Act. References to the Prospectus in this Section 5(b) include any amendments or supplements thereto at the date hereof. 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 California, the State of Delaware (but only with respect to the Delaware General Corporation Law) or the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the agents, (B) as the matters involving the application of laws of the State of New York, to the extent specified in such opinion, upon the opinion of ▇▇▇▇▇ & Wood LLP being delivered to the agents as of the date thereof and (C) as to matters of fact, to the extent they deem proper, on certificates and oral or written statements and other information of or from public officials and officers and representatives of the Company, the Guarantor, their respective subsidiaries and others. In rendering the opinions set forth in paragraphs (iii) and (iv), such counsel may state that such opinions are subject to the following: (i) bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent conveyance, moratorium or other laws now or hereafter in effect affecting creditors' rights generally; and (ii) general principles of equity (including, without limitation, standards of materiality, good faith, fair dealing and reasonableness) whether such principles are considered in a proceeding in equity or at law. In rendering the opinions set forth above, such counsel need not express an opinion as to the legality, validity, binding effect or enforceability of any provision of the Notes, the Indenture or the Guarantees providing for payments thereunder in a currency other than currency of the United States of America to the extent that a court of competent jurisdiction will under applicable law convert any judgment rendered in such other currency into currency of the United States of America or to the extent that payment in a currency other than currency of the United States of America is contrary to applicable law. In rendering the opinions set forth above, such counsel may state that it has assumed, with the permission of the agents, that the amount of Notes to be issued from time to time will not violate any provision in any such agreement referred to in paragraph (vii) which imposes limits on the amount of debt of the Company, the Guarantor or any of the Guarantor's subsidiaries which may be outstanding at any one time (whether directly or indirectly, through satisfaction of financial ratios or otherwise). (c) The Company and the Guarantor shall have furnished to the agents the opinion or opinions of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the Company and the Guarantor, dated the date hereof, substantially as set forth below, with such additional qualifications and exceptions as shall be acceptable to the agents and their counsel: (i) Each Subsidiary, if any, is a corporation, duly incorporated, validly existing and in good standing under the laws of the state of its incorporation, with the corporate power and authority to own its properties and to conduct its business as described in the Prospectus. (ii) Each of the Company, the Guarantor and the Subsidiaries 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 other than jurisdictions in which the failure to so qualify, when considered in the aggregate and not individually, would not have a material adverse effect on the Company or the Guarantor and its Subsidiaries considered as one enterprise. (iii) All the outstanding shares of capital stock of the Company and 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 Company and the Subsidiaries are owned by the Guarantor 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. (iv) The outstanding shares of common stock of the Guarantor have been duly and validly authorized and issued and are fully paid and nonassessable. (v) Neither the issue and sale of the Notes, the compliance by the Company and the Guarantor with all the provisions of this Agreement, the Indenture, the Notes or the Guarantees, 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 of, or constitute a default under the charter or by-laws of the Company or the Guarantor or, to the knowledge of such counsel, the terms of any indenture or other agreement or instrument to which the Company or the Guarantor or any of the Guarantor's subsidiaries is a party or bound, or any order, decree, law, judgment, rule or regulation known to such counsel to be applicable to the Company or the Guarantor or any of the Guarantor's subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrat
Appears in 1 contract
Sources: Selling Agency Agreement (Countrywide Credit Industries Inc)
Conditions to the Obligations of the Agents. The obligations of any agent 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 and the Guarantor Mexico contained herein as of the date hereofExecution Date, as of on the date of the effectiveness of any amendment to the Registration Statement (including the filing of any document incorporated by reference therein)Effective Date, as of the date of when any supplement to the Prospectus is filed with the Commission and as of each Settlement Closing Date, to the accuracy in all material respects of the statements of the Company and the Guarantor Mexico made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantor Mexico of their respective its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement shall have been issued, issued and no proceedings for that purpose shall have been instituted or threatened.;
(b) The Company and the Guarantor Mexico shall have furnished to each Agent an opinion, in form and substance reasonably satisfactory to the agents Agents, of the Fiscal Attorney or the Deputy Fiscal Attorney for Financial Affairs of the Federation dated the Execution Date (or, in the case of any applicable Terms Agreement, of either the Fiscal Attorney of the Federation or the Deputy Director General of Legal Procedures of Credit of the Ministry of Finance and Public Credit dated as of the Closing Date) to the effect that:
(i) Mexico has full power and authority to perform and comply with the terms and provisions of this Agreement, the Fiscal Agency Agreement, the Authorization and, if the opinion is being given pursuant to Section 2(b) hereof on account of Mexico having entered into a Terms Agreement, the applicable Terms Agreement; this Agreement, any applicable Terms Agreement, the Fiscal Agency Agreement and the Authorization have been duly authorized, executed and delivered by Mexico and, assuming that each of this Agreement, any applicable Terms Agreement and the Fiscal Agency Agreement constitutes a valid and legally binding agreement under New York law, each of this Agreement, any applicable Terms Agreement and the Fiscal Agency Agreement constitutes a valid and legally binding agreement, enforceable in accordance with its terms, subject to moratorium or similar laws of general applicability relating to or affecting creditors’ rights;
(ii) the Notes have been duly authorized in accordance with the laws of Mexico; when executed, issued and delivered in accordance with the laws of Mexico, authenticated in accordance with the provisions of the Fiscal Agency Agreement and the Authorization and delivered to and paid for by the purchasers thereof in accordance with the terms hereof, the Notes will be duly executed, issued and delivered in accordance with the laws of Mexico and Mexico will have full power and authority to perform and comply with the terms and provisions of the Notes and the Notes will constitute valid, legally binding, direct, general and unconditional External Indebtedness (as defined herein) of Mexico enforceable in accordance with their terms and entitled to the benefits of the Fiscal Agency Agreement; such obligations shall not in any way be legally affected or impaired as a result of any use to be made by Mexico of the proceeds received by it from the sale of the Notes; all necessary action by the Executive Branch of Mexico in connection with the Notes has been duly taken, including the issuance of the Decrees of the President of Mexico to the Ministry of Finance and Public Credit with respect to the issuance of the Notes, dated November 3, 1993, August 5, 1994, November 15, 1995, April 1, 1998, January 10, 2000, December 27, 2001, November 12, 2003 and December 29, 2004; and the Notes will rank pari passu, without any preference among themselves, with all other unsecured and unsubordinated External Indebtedness of Mexico;
(iii) neither the execution and delivery of the Fiscal Agency Agreement, the Authorization, the Notes, this Agreement or any applicable Terms Agreement, nor the consummation ofthe transactions therein or herein contemplated nor compliance with the terms and provisions thereof or hereof, including performance of each of the obligations contained in the Notes (A) will conflict with, violate or result in a breach of the Political Constitution of Mexico or any law, rule or administrative regulation of or applicable to Mexico (including without limitation the Federal Revenue Law for the Fiscal Year 2004 (or, in the case of any applicable Terms Agreement, the Federal Revenue Law for the year of the Closing Date)), (B) will conflict with or result in a breach of any of the terms, conditions or provisions of any treaty, convention, material agreement or material instrument to which Mexico is a party or by which Mexico is bound or constitute a default thereunder or (C) will result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the revenues or assets of Mexico under any such agreement or instrument;
(iv) the Registration Statement and the Prospectus and their filing with the Commission have been duly authorized by and on behalf of Mexico, and the Registration Statement, as amended, has been duly executed by and on behalf of Mexico; the information in the Registration Statement and the Prospectus stated on the authority of public officials of Mexico has been stated in their official capacities thereunto duly authorized by Mexico; all statements with respect to or involving matters of Mexican law set forth in the Registration Statement and the Prospectus are true and correct in all material respects;
(v) all authorizations, approvals and consents (which shall be specified in such opinion and certified copies of which shall be furnished to the United States counsel to the Agents and the Mexican counsel to the Agents) from all governmental authorities in Mexico that are necessary for the execution and delivery of this Agreement, the Fiscal Agency Agreement, the Authorization and any applicable Terms Agreement, and for the execution, issuance, sale and delivery of the Notes hereunder and the performance by Mexico of the covenants contained in the Notes have been obtained; once the Notes are issued, a notice is required to be filed by Mexico with the National Banking and Securities Commission; provided, however, that the failure to effect such notice shall not affect Mexico’s obligations under the Notes;
(vi) under the laws of Mexico, neither Mexico nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise), except that under Article 4 of the Federal Code of Civil Procedures of Mexico, attachment prior to judgment or attachment in aid of execution will not be enforced by Mexican courts against property of Mexico;
(vii) the choice of New York law in this Agreement, the Fiscal Agency Agreement (including the Authorization pursuant thereto), any applicable Terms Agreement and the Notes is a valid choice of law under the laws of Mexico and, accordingly, would be recognized and applied by the courts of Mexico if this Agreement, the Fiscal Agency Agreement (including the Authorization pursuant thereto), any Terms Agreement or any of the Notes or any claim made thereunder is brought before any such court (provided that in any proceedings in Mexico for the enforcement of this Agreement, the Fiscal Agency Agreement (including the Authorization pursuant thereto), any Terms Agreement or the Notes, a Mexican court would apply Mexican procedural law in such proceedings); the irrevocable submission of Mexico pursuant to Section 15 hereof to the jurisdiction of any state or federal court in The Borough of Manhattan, The City of New York, in respect of any action by any Agent, or by any persons controlling such Agent, arising out of or based upon this Agreement and the waiver by Mexico of any objection to the venue of any such proceeding in any such court are legal, valid and binding; the waiver by Mexico pursuant to Section 15 hereof of any immunity to jurisdiction to which it may otherwise be entitled (including sovereign immunity but excluding attachment prior to judgment or attachment in aid of execution in Mexico) or to any right to which it may be entitled, based upon place of residence or domicile, is legal, valid and binding; the appointment of Mexico’s Consul General in The City of New York as agent to receive service of process on behalf of Mexico is legal, valid and binding; service of process effected in the manner set forth in Section 15 hereof, assuming its validity under New York law, will be effective, insofar as Mexican law is concerned, to confer valid personal jurisdiction over Mexico; in addition, in accordance with article 104, fracción III of the Political Constitution of Mexico, any action against Mexico arising out of or based on the Notes may be instituted by the holders of the Notes in any competent federal court in Mexico; any judgment obtained in a New York state or federal court sitting in The Borough of Manhattan, The City of New York, arising out of or in relation to the obligations of Mexico under this Agreement would be enforceable, subject to the limitations described in clause (vi) above, against Mexico in the courts of Mexico pursuant to Articles 569 and 571 of the Federal Code of Civil Procedures of Mexico and Article 1347A of the Commerce Code, which provide, inter alia, that any judgment rendered outside Mexico may be enforced by Mexican courts, provided that:
(A) such judgment is obtained in compliance with legal requirements of the jurisdiction of the court rendering such judgment and in compliance with all legal requirements of this Agreement;
(B) such judgment is strictly for the payment of a certain sum of money, provided that, under the Mexican Monetary Law, payments which should be made in Mexico in foreign currency, whether by agreement or upon a judgment of a Mexican court, may be discharged in Mexican currency at a rate of exchange for such currency prevailing at the time of payment;
(C) service of process was made personally on Mexico or on the appropriate process agent;
(D) such judgment does not contravene Mexican public policy or laws;
(E) the applicable procedure under the laws of Mexico with respect to the enforcement of foreign judgments (including the issuance of a letter rogatory by the competent authority of such jurisdiction requesting enforcement of such judgment and the certification of such judgment as authentic by the corresponding authorities of such jurisdiction in accordance with the laws thereof), is complied with; and
(F) the courts of such jurisdiction recognize the principles of reciprocity in connection with the enforcement of Mexican judgments in such jurisdiction;
(viii) to ensure the legality, validity, enforceability or admissibility in evidence of this Agreement, the Fiscal Agency Agreement (including the Authorization pursuant thereto), any applicable Terms Agreement or the Notes, it is not necessary that this Agreement, the Fiscal Agency Agreement, any Terms Agreement or the Notes or any other document be filed, registered or recorded with, or executed or notarized before, any court or other authority in Mexico, or that any registration charge or stamp or similar tax be paid on or in respect of this Agreement, the Fiscal Agency Agreement (including the Authorization pursuant thereto), any Terms Agreement or the Notes, or any other document, provided that, in the event any legal proceedings are brought in any court of Mexico, a Spanish translation of the documents required in such proceedings prepared by a court-appointed translator would have to be approved by such court after the defendant had been given an opportunity for a hearing as to the accuracy of such translation, and proceedings would thereafter be based upon such translation;
(ix) there is no tax, levy, deduction, charge or withholding imposed by Mexico or any political subdivision thereof either (A) on or by virtue of the execution, delivery or enforcement of this Agreement, the Fiscal Agency Agreement (including the Authorization pursuant thereto), any Terms Agreement or the Notes or (B) on any payment to be made by Mexico hereunder or any payment of principal, premium, if any, or interest, if any, on any Note, provided that such Note is held by an individual who is not a resident of Mexico or by a non-Mexican corporation directly and not through a permanent establishment thereof in Mexico;
(x) this Agreement, the Fiscal Agency Agreement, the Authorization, any Terms Agreement and the Notes are in proper legal form under the laws of Mexico for the enforcement thereof against Mexico under the laws of Mexico, provided that, in the event any legal proceedings are brought in any court of Mexico, a Spanish translation of the documents required in such proceedings prepared by a court-appointed translator would have to be approved by such court after the defendant had been given an opportunity for a hearing as to the accuracy of such translation, and proceedings would thereafter be based upon such translation; and
(xi) the information contained in the Prospectus Supplement under the caption “Taxation–Mexican Taxation” fairly summarizes the provisions of Mexican tax law therein described. In rendering such opinion, such counsel may rely, without independent investigation on its part, as to all matters governed by United States Federal and New York law upon the opinion or opinions of referred to under subsection (c) below;
(c) Each Agent shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, United States counsel to the Company and the GuarantorMexico, such opinion or opinions, dated the date hereof, substantially as set forth below, with such additional qualifications Execution Date in form and exceptions as shall be acceptable substance reasonably satisfactory to the agents and their counselAgents, to the effect that:
(i) Each of the Company this Agreement and the Guarantor is a corporation any applicable Terms Agreement have been duly incorporated, validly existing executed and in good standing under the laws of the state of its incorporation and has the corporate power and authority to own its properties and to conduct its business as described in the Prospectus.delivered by Mexico;
(ii) The Company and the Guarantor have the corporate power and authority to enter into this Fiscal Agency Agreement and the Terms Agreement (if applicable), and this Agreement and the Terms Agreement (if applicable) Authorization have been duly and validly authorized, executed and delivered by Mexico and, assuming due authorization, execution and delivery of the Company Fiscal Agency Agreement by the Fiscal Agent, are valid, binding and the Guarantorenforceable obligations of Mexico, respectively.(a) subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally and to general principles of equity and (b) subject to possible judicial action giving effect to foreign governmental actions or foreign laws affecting creditors’ rights;
(iii) The form assuming due authorization, execution and general terms delivery by Mexico of each Sub-Authorization required by the Authorization and of the Notes have been duly and validly authorized and established in conformity with the provisions of the Indenture by all necessary corporate action by the Companyagainst payment therefor, and when the particular terms assuming due authentication, execution and delivery of the Notes have been duly established in accordance with by the provisions of the IndentureFiscal Agent, the Procedures and the resolutions of the Board of Directors of the Company and such Notes have been duly executed, authenticated and delivered against payment therefor in accordance with the provisions of the Indenture, the Procedures and this Agreement, will constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and the terms of the Indenture, and the holders of the Notes will be the valid, binding and enforceable obligations of Mexico, entitled to the benefits of the Indenture; Fiscal Agency Agreement, (a) subject to applicable bankruptcy, insolvency and the Indenture has been duly authorized, executed similar laws affecting creditors’ rights generally and delivered by each to general principles of the Company equity and Guarantor, has been qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against each of the Company and the Guarantor in accordance with its terms.(b) subject to possible judicial action giving effect to foreign governmental actions or foreign laws affecting creditors’ rights;
(iv) The Guarantees, in the forms certified to by an authorized officer of the Guarantor, have been duly issuance and validly authorized by all necessary corporate action by the Guarantor and, upon due issuance, authentication and delivery of the related Notes and due endorsement of the Guarantees, the Guarantees will have been duly executed, issued and delivered and will constitute the legal, valid and binding obligations of the Guarantor enforceable against the Guarantor in accordance with their terms and the terms of the Indenture, and the holders sale of the Notes upon which by Mexico pursuant to this Agreement and any applicable Terms Agreement and the Guarantees are endorsed will be entitled to performance by Mexico of its obligations in this Agreement, the benefits Fiscal Agency Agreement, the Notes and the Authorization do not require any consent, approval, authorization, registration or qualification of or with any governmental authority of the Indenture.
(v) The Registration Statement has become effective United States or the State of New York that in such counsel’s experience is normally applicable in relation to transactions of the type contemplated by this Agreement, the Fiscal Agency Agreement, the Authorization and the Notes, except such as have been obtained or effected under the Act; any 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 purchase and distribution of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened and the Registration Statement and the Prospectus Notes under this Agreement (other than (i) the financial statements and other financial and statistical information contained therein and (ii) the Statement of Eligibility on Form T-1 filed as an exhibit thereto, as to which such counsel need express no opinion), as of their respective effective or issue dates, as the case may be, appear on their face to be responsive as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations and the Trust Indenture Act and the rules and regulations of the Commission thereunder.;
(viv) No consent, approval, authorization or order of any United States federal or New York, California or (with respect to matters arising under the Delaware General Corporation Law) Delaware court or governmental agency or body is required for the consummation of the transactions contemplated by this Agreement or the Indenture, except such as have been obtained under the Act and such as may be required under the securities and blue sky laws, rules or regulations of any jurisdiction in connection with the purchase and distribution of the Notes and related Guarantees by the agents and such other approvals as have been obtained.
(vii) Neither the issue and sale of the Notes (in the forms certified to by an authorized officer of the Company), the compliance by the Company and the Guarantor with all the provisions of this Agreement, the Indenture, the Notes or the Guarantees (in the form certified to by an authorized officer of the Guarantor), the consummation of the transactions herein or therein contemplated nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under the charter or bylaws of the Company or the Guarantor or the terms of any indenture or other agreement or instrument filed with the Commission and to which the Company or the Guarantor or any of the Guarantor's subsidiaries is a party or bound, or any order, decree, judgment or regulation (other than any federal or state securities or blue sky laws, rules or regulations) known to such counsel to be applicable to the Company or the Guarantor or any of the Guarantor's subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Guarantor or any of the Guarantor's subsidiaries.
(viii) To the best knowledge of such counsel, no holders of securities of the Company or the Guarantor have rights to the registration of such securities under the Registration Statement.
(ix) Such counsel confirms (i) that the statements in the Prospectus under the caption "Federal Income Tax Consequences", insofar as such statements constitute a summary of the legal matters referred to therein, fairly present the information disclosed therein in all material respects, (ii) the conformity in all material respects of the Notes (in the forms certified to by an authorized officer of the Company) to the statements relating thereto in the Prospectus, and (iii) the conformity in all material respects of the Indenture and the Guarantees to the statements relating thereto in the Prospectus under the captions "Description of Notes" and "Description of Debt Securities of Countrywide Home Loans and Related Guarantees of Countrywide Credit Industries." Such counsel shall also state that, in the course of their engagement to represent or advise the Company and the Guarantor professionally, they have not become aware of any pending legal proceeding before any court or administrative agency or authority or any arbitration tribunal, nor have they devoted substantive attention in the form of legal representation as to any current overtly threatened litigation against or directly affecting the Company or its subsidiaries or the Guarantor or its subsidiaries, in each case that is required to be described in the Registration Statement or the Prospectus and is not so described. In making the foregoing statement, they shall endeavor, to the extent they believe necessary, to determine from lawyers currently in their firm who have performed substantive legal services for the Company or the Guarantor, whether such services involved substantive attention in the form of legal representation concerning pending legal proceedings or overtly threatened litigation of the nature referred to above. Beyond that, they need not make any review, search or investigation of public files or records or files or records of the Company or the Guarantor, or of their respective transactions, or any other investigation or inquiry with respect to the foregoing statement. Such counsel shall also state that in the course of the preparation by the Company, the Guarantor and their counsel of the Registration Statement and Prospectus (other than the Incorporated Documents (as defined below)), such counsel attended conferences with certain of the officers of, and the independent public accountants for, the Company and the Guarantor, at which the Registration Statement and Prospectus were discussed. Given the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process, such counsel need not pass upon and need not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus including the Incorporated Documents, except as specifically described in the opinion set forth in paragraph (ix) above. Subject to the foregoing and on the basis of the information such counsel gained in the performance of the services referred to above, including information obtained from officers and other representatives of the Company and Guarantor, such counsel shall state that no facts have come to such counsel's attention that have caused it to believe that the Registration Statement, at the time it became effective, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, at its date or at the date hereof, included or includes, as the case may be, any untrue statement of material fact or omitted or omits, as the case may be, 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 such counsel need not express a view or belief with respect to (i) the financial statements, the related notes and schedules thereto or other financial and statistical data included or incorporated by reference in the Registration Statement and Prospectus or (ii) any part of the Registration Statement which shall constitute a Statement of Eligibility on Form T-1 under the Trust Indenture Act. References to the Prospectus in this Section 5(b) include any amendments or supplements thereto at the date hereof. 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 California, the State of Delaware (but only with respect to the Delaware General Corporation Law) or the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the agents, (B) as the matters involving the application of laws of the State of New York relating to submission to jurisdiction, Mexico has pursuant to Section 15 hereof validly and irrevocably submitted to the jurisdiction of any state or federal court located in The Borough of Manhattan, The City of New York, to the extent specified in such opinion, upon the opinion of ▇▇▇▇▇ & Wood LLP being delivered to the agents as of the date thereof and (C) as to matters of fact, to the extent they deem proper, on certificates and oral or written statements and other information any action arising out of or from public officials and officers and representatives of the Company, the Guarantor, their respective subsidiaries and others. In rendering the opinions set forth in paragraphs (iii) and (iv), such counsel may state that such opinions are subject to the following: (i) bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent conveyance, moratorium or other laws now or hereafter in effect affecting creditors' rights generally; and (ii) general principles of equity (including, without limitation, standards of materiality, good faith, fair dealing and reasonableness) whether such principles are considered in a proceeding in equity or at law. In rendering the opinions set forth above, such counsel need not express an opinion as to the legality, validity, binding effect or enforceability of any provision of the Notes, the Indenture or the Guarantees providing for payments thereunder in a currency other than currency of the United States of America to the extent that a court of competent jurisdiction will under applicable law convert any judgment rendered in such other currency into currency of the United States of America or to the extent that payment in a currency other than currency of the United States of America is contrary to applicable law. In rendering the opinions set forth above, such counsel may state that it has assumed, with the permission of the agents, that the amount of Notes to be issued from time to time will not violate any provision in any such agreement referred to in paragraph (vii) which imposes limits on the amount of debt of the Company, the Guarantor or any of the Guarantor's subsidiaries which may be outstanding at any one time (whether directly or indirectly, through satisfaction of financial ratios or otherwise).
(c) The Company and the Guarantor shall have furnished to the agents the opinion or opinions of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the Company and the Guarantor, dated the date hereof, substantially as set forth below, with such additional qualifications and exceptions as shall be acceptable to the agents and their counsel:
(i) Each Subsidiary, if any, is a corporation, duly incorporated, validly existing and in good standing under the laws of the state of its incorporation, with the corporate power and authority to own its properties and to conduct its business as described in the Prospectus.
(ii) Each of the Company, the Guarantor and the Subsidiaries 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 other than jurisdictions in which the failure to so qualify, when considered in the aggregate and not individually, would not have a material adverse effect on the Company or the Guarantor and its Subsidiaries considered as one enterprise.
(iii) All the outstanding shares of capital stock of the Company and 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 Company and the Subsidiaries are owned by the Guarantor 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.
(iv) The outstanding shares of common stock of the Guarantor have been duly and validly authorized and issued and are fully paid and nonassessable.
(v) Neither the issue and sale of the Notes, the compliance by the Company and the Guarantor with all the provisions of based upon this Agreement, the Indenture, the Notes or the Guarantees, 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 of, or constitute a default under the charter or by-laws of the Company or the Guarantor or, has to the knowledge of such counsel, the terms of any indenture or other agreement or instrument to which the Company or the Guarantor or any of the Guarantor's subsidiaries is a party or bound, or any order, decree, law, judgment, rule or regulation known to such counsel to be applicable to the Company or the Guarantor or any of the Guarantor's subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitratfullest extent permitted by appli
Appears in 1 contract
Conditions to the Obligations of the Agents. The obligations of any agent 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 and the Guarantor Mexico contained herein as of the date hereofExecution Date, as of on the date of the effectiveness of any amendment to the Registration Statement (including the filing of any document incorporated by reference therein)Effective Date, as of the date of when any supplement to the Prospectus is filed with the Commission and as of each Settlement Closing Date, to the accuracy in all material respects of the statements of the Company and the Guarantor Mexico made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantor Mexico of their respective its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement shall have been issued, issued and no proceedings for that purpose shall have been instituted or threatened.;
(b) The Company and the Guarantor Mexico shall have furnished to each Agent an opinion, in form and substance reasonably satisfactory to the agents Agents, of the Fiscal Attorney or the Deputy Fiscal Attorney for Financial Affairs of the Federation dated the Execution Date (or, in the case of any applicable Terms Agreement, of either the Fiscal Attorney of the Federation or the Deputy Director General of Legal Procedures of Credit of the Ministry of Finance and Public Credit dated as of the Closing Date) to the effect that:
(i) Mexico has full power and authority to perform and comply with the terms and provisions of this Agreement, the Fiscal Agency Agreement, the Authorization and, if the opinion is being given pursuant to Section 2(b) hereof on account of Mexico having entered into a Terms Agreement, the applicable Terms Agreement; this Agreement, any applicable Terms Agreement, the Fiscal Agency Agreement and the Authorization have been duly authorized, executed and delivered by Mexico and, assuming that each of this Agreement, any applicable Terms Agreement and the Fiscal Agency Agreement constitutes a valid and legally binding agreement under New York law, each of this Agreement, any applicable Terms Agreement and the Fiscal Agency Agreement constitutes a valid and legally binding agreement, enforceable in accordance with its terms, subject to moratorium or similar laws of general applicability relating to or affecting creditors’ rights;
(ii) the Notes have been duly authorized in accordance with the laws of Mexico; when executed, issued and delivered in accordance with the laws of Mexico, authenticated in accordance with the provisions of the Fiscal Agency Agreement and the Authorization and delivered to and paid for by the purchasers thereof in accordance with the terms hereof, the Notes will be duly executed, issued and delivered in accordance with the laws of Mexico and Mexico will have full power and authority to perform and comply with the terms and provisions of the Notes and the Notes will constitute valid, legally binding, direct, general and unconditional External Indebtedness (as defined herein) of Mexico enforceable in accordance with their terms and entitled to the benefits of the Fiscal Agency Agreement; such obligations shall not in any way be legally affected or impaired as a result of any use to be made by Mexico of the proceeds received by it from the sale of the Notes; all necessary action by the Executive Branch of Mexico in connection with the Notes has been duly taken, including the issuance of the Decrees of the President of Mexico to the Ministry of Finance and Public Credit with respect to the issuance of the Notes, dated November 3, 1993, August 5, 1994, November 15, 1995, April 1, 1998, January 10, 2000, December 27, 2001 and November 12, 2003; and the Notes will rank pari passu, without any preference among themselves, with all other unsecured and unsubordinated External Indebtedness of Mexico;
(iii) neither the execution and delivery of the Fiscal Agency Agreement, the Authorization, the Notes, this Agreement or any applicable Terms Agreement, nor the consummation ofthe transactions therein or herein contemplated nor compliance with the terms and provisions thereof or hereof, including performance of each of the obligations contained in the Notes (A) will conflict with, violate or result in a breach of the Political Constitution of Mexico or any law, rule or administrative regulation of or applicable to Mexico (including without limitation the Federal Revenue Law for the Fiscal Year 2003 (or, in the case of any applicable Terms Agreement, the Federal Revenue Law for the year of the Closing Date)), (B) will conflict with or result in a breach of any of the terms, conditions or provisions of any treaty, convention, material agreement or material instrument to which Mexico is a party or by which Mexico is bound or constitute a default thereunder or (C) will result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the revenues or assets of Mexico under any such agreement or instrument;
(iv) the Registration Statement and the Prospectus and their filing with the Commission have been duly authorized by and on behalf of Mexico, and the Registration Statement, as amended, has been duly executed by and on behalf of Mexico; the information in the Registration Statement and the Prospectus stated on the authority of public officials of Mexico has been stated in their official capacities thereunto duly authorized by Mexico; all statements with respect to or involving matters of Mexican law set forth in the Registration Statement and the Prospectus are true and correct in all material respects;
(v) all authorizations, approvals and consents (which shall be specified in such opinion and certified copies of which shall be furnished to the United States counsel to the Agents and the Mexican counsel to the Agents) from all governmental authorities in Mexico that are necessary for the execution and delivery of this Agreement, the Fiscal Agency Agreement, the Authorization and any applicable Terms Agreement, and for the execution, issuance, sale and delivery of the Notes hereunder and the performance by Mexico of the covenants contained in the Notes have been obtained; once the Notes are issued, a notice is required to be filed by Mexico with the National Banking and Securities Commission; provided, however, that the failure to effect such notice shall not affect Mexico’s obligations under the Notes;
(vi) under the laws of Mexico, neither Mexico nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise), except that under Article 4 of the Federal Code of Civil Procedures of Mexico, attachment prior to judgment or attachment in aid of execution will not be enforced by Mexican courts against property of Mexico;
(vii) the choice of New York law in this Agreement, the Fiscal Agency Agreement (including the Authorization pursuant thereto), any applicable Terms Agreement and the Notes is a valid choice of law under the laws of Mexico and, accordingly, would be recognized and applied by the courts of Mexico if this Agreement, the Fiscal Agency Agreement (including the Authorization pursuant thereto), any Terms Agreement or any of the Notes or any claim made thereunder is brought before any such court (provided that in any proceedings in Mexico for the enforcement of this Agreement, the Fiscal Agency Agreement (including the Authorization pursuant thereto), any Terms Agreement or the Notes, a Mexican court would apply Mexican procedural law in such proceedings); the irrevocable submission of Mexico pursuant to Section 15 hereof to the jurisdiction of any state or federal court in The Borough of Manhattan, The City of New York, in respect of any action by any Agent, or by any persons controlling such Agent, arising out of or based upon this Agreement and the waiver by Mexico of any objection to the venue of any such proceeding in any such court are legal, valid and binding; the waiver by Mexico pursuant to Section 15 hereof of any immunity to jurisdiction to which it may otherwise be entitled (including sovereign immunity but excluding attachment prior to judgment or attachment in aid of execution in Mexico) or to any right to which it may be entitled, based upon place of residence or domicile, is legal, valid and binding; the appointment of Mexico’s Consul General in The City of New York as agent to receive service of process on behalf of Mexico is legal, valid and binding; service of process effected in the manner set forth in Section 15 hereof, assuming its validity under New York law, will be effective, insofar as Mexican law is concerned, to confer valid personal jurisdiction over Mexico; in addition, in accordance with article 104, fraccion III of the Political Constitution of Mexico, any action against Mexico arising out of or based on the Notes may be instituted by the holders of the Notes in any competent federal court in Mexico; any judgment obtained in a New York state or federal court sitting in The Borough of Manhattan, The City of New York, arising out of or in relation to the obligations of Mexico under this Agreement would be enforceable, subject to the limitations described in clause (vi) above, against Mexico in the courts of Mexico pursuant to Articles 569 and 571 of the Federal Code of Civil Procedures of Mexico and Article 1347A of the Commerce Code, which provide, inter alia, that any judgment rendered outside Mexico may be enforced by Mexican courts, provided that:
(A) such judgment is obtained in compliance with legal requirements of the jurisdiction of the court rendering such judgment and in compliance with all legal requirements of this Agreement;
(B) such judgment is strictly for the payment of a certain sum of money, provided that, under the Mexican Monetary Law, payments which should be made in Mexico in foreign currency, whether by agreement or upon a judgment of a Mexican court, may be discharged in Mexican currency at a rate of exchange for such currency prevailing at the time of payment;
(C) service of process was made personally on Mexico or on the appropriate process agent;
(D) such judgment does not contravene Mexican public policy or laws;
(E) the applicable procedure under the laws of Mexico with respect to the enforcement of foreign judgments (including the issuance of a letter rogatory by the competent authority of such jurisdiction requesting enforcement of such judgment and the certification of such judgment as authentic by the corresponding authorities of such jurisdiction in accordance with the laws thereof), is complied with; and
(F) the courts of such jurisdiction recognize the principles of reciprocity in connection with the enforcement of Mexican judgments in such jurisdiction;
(viii) to ensure the legality, validity, enforceability or admissibility in evidence of this Agreement, the Fiscal Agency Agreement (including the Authorization pursuant thereto), any applicable Terms Agreement or the Notes, it is not necessary that this Agreement, the Fiscal Agency Agreement, any Terms Agreement or the Notes or any other document be filed, registered or recorded with, or executed or notarized before, any court or other authority in Mexico, or that any registration charge or stamp or similar tax be paid on or in respect of this Agreement, the Fiscal Agency Agreement (including the Authorization pursuant thereto), any Terms Agreement or the Notes, or any other document, provided that, in the event any legal proceedings are brought in any court of Mexico, a Spanish translation of the documents required in such proceedings prepared by a court-appointed translator would have to be approved by such court after the defendant had been given an opportunity for a hearing as to the accuracy of such translation, and proceedings would thereafter be based upon such translation;
(ix) there is no tax, levy, deduction, charge or withholding imposed by Mexico or any political subdivision thereof either (A) on or by virtue of the execution, delivery or enforcement of this Agreement, the Fiscal Agency Agreement (including the Authorization pursuant thereto), any Terms Agreement or the Notes or (B) on any payment to be made by Mexico hereunder or any payment of principal, premium, if any, or interest, if any, on any Note, provided that such Note is held by an individual who is not a resident of Mexico or by a non-Mexican corporation directly and not through a permanent establishment thereof in Mexico;
(x) this Agreement, the Fiscal Agency Agreement, the Authorization, any Terms Agreement and the Notes are in proper legal form under the laws of Mexico for the enforcement thereof against Mexico under the laws of Mexico, provided that, in the event any legal proceedings are brought in any court of Mexico, a Spanish translation of the documents required in such proceedings prepared by a court-appointed translator would have to be approved by such court after the defendant had been given an opportunity for a hearing as to the accuracy of such translation, and proceedings would thereafter be based upon such translation; and
(xi) the information contained in the Prospectus Supplement under the caption “Taxation—Mexican Taxation” fairly summarizes the provisions of Mexican tax law therein described. In rendering such opinion, such counsel may rely, without independent investigation on its part, as to all matters governed by United States Federal and New York law upon the opinion or opinions of ▇▇▇▇▇▇referred to under subsection (c) below;
(c) Each Agent shall have received from Cleary, ▇Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇ LLP▇▇▇▇, United States counsel to the Company and the GuarantorMexico, such opinion or opinions, dated the date hereof, substantially as set forth below, with such additional qualifications Execution Date in form and exceptions as shall be acceptable substance reasonably satisfactory to the agents and their counselAgents, to the effect that:
(i) Each of the Company this Agreement and the Guarantor is a corporation any applicable Terms Agreement have been duly incorporated, validly existing executed and in good standing under the laws of the state of its incorporation and has the corporate power and authority to own its properties and to conduct its business as described in the Prospectus.delivered by Mexico;
(ii) The Company and the Guarantor have the corporate power and authority to enter into this Fiscal Agency Agreement and the Terms Agreement (if applicable), and this Agreement and the Terms Agreement (if applicable) Authorization have been duly and validly authorized, executed and delivered by Mexico and, assuming due authorization, execution and delivery of the Company Fiscal Agency Agreement by the Fiscal Agent, are valid, binding and the Guarantorenforceable obligations of Mexico, respectively.subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, to general principles of equity (whether considered in a proceeding in equity or at law) and to possible judicial action giving effect to foreign governmental actions or foreign laws affecting creditors’ rights;
(iii) The form assuming due authorization, execution and general terms delivery by Mexico of each Sub-Authorization required by the Authorization and of the Notes have been duly and validly authorized and established in conformity with the provisions of the Indenture by all necessary corporate action by the Companyagainst payment therefor, and when the particular terms assuming due authentication, execution and delivery of the Notes have been duly established in accordance with by the provisions of the IndentureFiscal Agent, the Procedures and the resolutions of the Board of Directors of the Company and such Notes have been duly executed, authenticated and delivered against payment therefor in accordance with the provisions of the Indenture, the Procedures and this Agreement, will constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and the terms of the Indenture, and the holders of the Notes will be the valid, binding and enforceable obligations of Mexico, entitled to the benefits of the Indenture; Fiscal Agency Agreement, subject to applicable bankruptcy, insolvency and the Indenture has been duly authorizedsimilar laws affecting creditors’ rights generally, executed to general principles of equity (whether considered in a proceeding in equity or at law) and delivered by each of the Company and Guarantor, has been qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against each of the Company and the Guarantor in accordance with its terms.to possible judicial action giving effect to foreign governmental actions or foreign laws affecting creditors’ rights;
(iv) The Guarantees, in the forms certified to by an authorized officer of the Guarantor, have been duly issuance and validly authorized by all necessary corporate action by the Guarantor and, upon due issuance, authentication and delivery of the related Notes and due endorsement of the Guarantees, the Guarantees will have been duly executed, issued and delivered and will constitute the legal, valid and binding obligations of the Guarantor enforceable against the Guarantor in accordance with their terms and the terms of the Indenture, and the holders sale of the Notes upon which by Mexico pursuant to this Agreement and any applicable Terms Agreement and the Guarantees are endorsed will be entitled to performance by Mexico of its obligations in this Agreement, the benefits Fiscal Agency Agreement, the Notes and the Authorization do not require any consent, approval, authorization, registration or qualification of or with any governmental authority of the Indenture.
(v) The Registration Statement has become effective United States or the State of New York that in such counsel’s experience is normally applicable in relation to transactions of the type contemplated by this Agreement, the Fiscal Agency Agreement, the Authorization and the Notes, except such as have been obtained or effected under the Act; any 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 purchase and distribution of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened and the Registration Statement and the Prospectus Notes under this Agreement (other than (i) the financial statements and other financial and statistical information contained therein and (ii) the Statement of Eligibility on Form T-1 filed as an exhibit thereto, as to which such counsel need express no opinion), as of their respective effective or issue dates, as the case may be, appear on their face to be responsive as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations and the Trust Indenture Act and the rules and regulations of the Commission thereunder.;
(viv) No consent, approval, authorization or order of any United States federal or New York, California or (with respect to matters arising under the Delaware General Corporation Law) Delaware court or governmental agency or body is required for the consummation of the transactions contemplated by this Agreement or the Indenture, except such as have been obtained under the Act and such as may be required under the securities and blue sky laws, rules or regulations of any jurisdiction in connection with the purchase and distribution of the Notes and related Guarantees by the agents and such other approvals as have been obtained.
(vii) Neither the issue and sale of the Notes (in the forms certified to by an authorized officer of the Company), the compliance by the Company and the Guarantor with all the provisions of this Agreement, the Indenture, the Notes or the Guarantees (in the form certified to by an authorized officer of the Guarantor), the consummation of the transactions herein or therein contemplated nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under the charter or bylaws of the Company or the Guarantor or the terms of any indenture or other agreement or instrument filed with the Commission and to which the Company or the Guarantor or any of the Guarantor's subsidiaries is a party or bound, or any order, decree, judgment or regulation (other than any federal or state securities or blue sky laws, rules or regulations) known to such counsel to be applicable to the Company or the Guarantor or any of the Guarantor's subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Guarantor or any of the Guarantor's subsidiaries.
(viii) To the best knowledge of such counsel, no holders of securities of the Company or the Guarantor have rights to the registration of such securities under the Registration Statement.
(ix) Such counsel confirms (i) that the statements in the Prospectus under the caption "Federal Income Tax Consequences", insofar as such statements constitute a summary of the legal matters referred to therein, fairly present the information disclosed therein in all material respects, (ii) the conformity in all material respects of the Notes (in the forms certified to by an authorized officer of the Company) to the statements relating thereto in the Prospectus, and (iii) the conformity in all material respects of the Indenture and the Guarantees to the statements relating thereto in the Prospectus under the captions "Description of Notes" and "Description of Debt Securities of Countrywide Home Loans and Related Guarantees of Countrywide Credit Industries." Such counsel shall also state that, in the course of their engagement to represent or advise the Company and the Guarantor professionally, they have not become aware of any pending legal proceeding before any court or administrative agency or authority or any arbitration tribunal, nor have they devoted substantive attention in the form of legal representation as to any current overtly threatened litigation against or directly affecting the Company or its subsidiaries or the Guarantor or its subsidiaries, in each case that is required to be described in the Registration Statement or the Prospectus and is not so described. In making the foregoing statement, they shall endeavor, to the extent they believe necessary, to determine from lawyers currently in their firm who have performed substantive legal services for the Company or the Guarantor, whether such services involved substantive attention in the form of legal representation concerning pending legal proceedings or overtly threatened litigation of the nature referred to above. Beyond that, they need not make any review, search or investigation of public files or records or files or records of the Company or the Guarantor, or of their respective transactions, or any other investigation or inquiry with respect to the foregoing statement. Such counsel shall also state that in the course of the preparation by the Company, the Guarantor and their counsel of the Registration Statement and Prospectus (other than the Incorporated Documents (as defined below)), such counsel attended conferences with certain of the officers of, and the independent public accountants for, the Company and the Guarantor, at which the Registration Statement and Prospectus were discussed. Given the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process, such counsel need not pass upon and need not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus including the Incorporated Documents, except as specifically described in the opinion set forth in paragraph (ix) above. Subject to the foregoing and on the basis of the information such counsel gained in the performance of the services referred to above, including information obtained from officers and other representatives of the Company and Guarantor, such counsel shall state that no facts have come to such counsel's attention that have caused it to believe that the Registration Statement, at the time it became effective, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, at its date or at the date hereof, included or includes, as the case may be, any untrue statement of material fact or omitted or omits, as the case may be, 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 such counsel need not express a view or belief with respect to (i) the financial statements, the related notes and schedules thereto or other financial and statistical data included or incorporated by reference in the Registration Statement and Prospectus or (ii) any part of the Registration Statement which shall constitute a Statement of Eligibility on Form T-1 under the Trust Indenture Act. References to the Prospectus in this Section 5(b) include any amendments or supplements thereto at the date hereof. 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 California, the State of Delaware (but only with respect to the Delaware General Corporation Law) or the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the agents, (B) as the matters involving the application of laws of the State of New York relating to submission to jurisdiction, Mexico has pursuant to Section 15 hereof validly and irrevocably submitted to the jurisdiction of any state or federal court located in The Borough of Manhattan, The City of New York, to the extent specified in such opinion, upon the opinion of ▇▇▇▇▇ & Wood LLP being delivered to the agents as of the date thereof and (C) as to matters of fact, to the extent they deem proper, on certificates and oral or written statements and other information any action arising out of or from public officials and officers and representatives of the Company, the Guarantor, their respective subsidiaries and others. In rendering the opinions set forth in paragraphs (iii) and (iv), such counsel may state that such opinions are subject to the following: (i) bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent conveyance, moratorium or other laws now or hereafter in effect affecting creditors' rights generally; and (ii) general principles of equity (including, without limitation, standards of materiality, good faith, fair dealing and reasonableness) whether such principles are considered in a proceeding in equity or at law. In rendering the opinions set forth above, such counsel need not express an opinion as to the legality, validity, binding effect or enforceability of any provision of the Notes, the Indenture or the Guarantees providing for payments thereunder in a currency other than currency of the United States of America to the extent that a court of competent jurisdiction will under applicable law convert any judgment rendered in such other currency into currency of the United States of America or to the extent that payment in a currency other than currency of the United States of America is contrary to applicable law. In rendering the opinions set forth above, such counsel may state that it has assumed, with the permission of the agents, that the amount of Notes to be issued from time to time will not violate any provision in any such agreement referred to in paragraph (vii) which imposes limits on the amount of debt of the Company, the Guarantor or any of the Guarantor's subsidiaries which may be outstanding at any one time (whether directly or indirectly, through satisfaction of financial ratios or otherwise).
(c) The Company and the Guarantor shall have furnished to the agents the opinion or opinions of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the Company and the Guarantor, dated the date hereof, substantially as set forth below, with such additional qualifications and exceptions as shall be acceptable to the agents and their counsel:
(i) Each Subsidiary, if any, is a corporation, duly incorporated, validly existing and in good standing under the laws of the state of its incorporation, with the corporate power and authority to own its properties and to conduct its business as described in the Prospectus.
(ii) Each of the Company, the Guarantor and the Subsidiaries 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 other than jurisdictions in which the failure to so qualify, when considered in the aggregate and not individually, would not have a material adverse effect on the Company or the Guarantor and its Subsidiaries considered as one enterprise.
(iii) All the outstanding shares of capital stock of the Company and 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 Company and the Subsidiaries are owned by the Guarantor 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.
(iv) The outstanding shares of common stock of the Guarantor have been duly and validly authorized and issued and are fully paid and nonassessable.
(v) Neither the issue and sale of the Notes, the compliance by the Company and the Guarantor with all the provisions of based upon this Agreement, the Indenture, the Notes or the Guarantees, 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 of, or constitute a default under the charter or by-laws of the Company or the Guarantor or, to the knowledge of such counsel, the terms of any indenture or other agreement or instrument to which the Company or the Guarantor or any of the Guarantor's subsidiaries is a party or bound, or any order, decree, law, judgment, rule or regulation known to such counsel to be applicable to the Company or the Guarantor or any of the Guarantor's subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrat
Appears in 1 contract
Conditions to the Obligations of the Agents. The obligations of any agent to solicit offers the Agents to purchase the Notes Shares shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantor contained herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement (including the filing of any document incorporated by reference therein), as of the date of any supplement to the Prospectus and as of each Settlement Closing Date, to the accuracy of the statements of the Company and the Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantor of their respective its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness The Agents shall have received confirmation from each of H▇▇▇▇ Lovells and B▇▇▇▇▇▇ ▇▇▇▇▇ LLP that there are no material claims to which its representation has been sought and that are outstanding in respect of the Registration Statement, as amended from time to time, shall have been issued, and no proceedings for that purpose shall have been instituted or threatenedCompany.
(b) The Company and the Guarantor shall have furnished to the agents the opinion or opinions requested and caused each of H▇▇▇▇▇▇▇ Lovells, U.S. counsel for the Company, and B▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, Canadian counsel for the Company, to have furnished to the Agents opinions, in form and substance satisfactory to the Lead Manager and its counsel, dated the Closing Date and addressed to the Agents relating to (i) customary corporate opinions in relation to the Company and the Guarantor, dated the date hereof, substantially as set forth below, with such additional qualifications and exceptions as shall be acceptable to the agents and their counsel:
(i) Each of the Company and the Guarantor is a corporation duly incorporated, validly existing and in good standing under the laws of the state of its incorporation and has the corporate power and authority to own its properties and to conduct its business as described in the Prospectus.
(ii) The Company and the Guarantor have the corporate power and authority to enter into this Agreement and the Terms Agreement (if applicable), and this Agreement and the Terms Agreement (if applicable) have been duly and validly authorized, executed and delivered by the Company and the Guarantor, respectively.
(iii) The form and general terms of the Notes have been duly and validly authorized and established in conformity with the provisions of the Indenture by all necessary corporate action by the Company, and when the particular terms of the Notes have been duly established in accordance with the provisions of the Indenture, the Procedures and the resolutions of the Board of Directors of the Company and such Notes have been duly executed, authenticated and delivered against payment therefor in accordance with the provisions of the Indenture, the Procedures and this Agreement, will constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and the terms of the Indenture, and the holders of the Notes will be entitled to the benefits of the Indenture; and the Indenture has been duly authorized, executed and delivered by each of the Company and Guarantor, has been qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against each of the Company and the Guarantor in accordance with its terms.
(iv) The Guarantees, in the forms certified to by an authorized officer of the Guarantor, have been duly and validly authorized by all necessary corporate action by the Guarantor and, upon due issuance, authentication and delivery of the related Notes and due endorsement of the Guarantees, the Guarantees will have been duly executed, issued and delivered and will constitute the legal, valid and binding obligations of the Guarantor enforceable against the Guarantor in accordance with their terms and the terms of the Indenture, and the holders of the Notes upon which the Guarantees are endorsed will be entitled to the benefits of the Indenture.
(v) The Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened and the Registration Statement and the Prospectus (other than (i) the financial statements and other financial and statistical information contained therein 10393444 Canada Inc. and (ii) the Statement of Eligibility on Form T-1 filed as an exhibit thereto, as to which such counsel need express no opinion), as of their respective effective or issue dates, as Shares being “flow-through shares” that are not “prescribed shares” for the case may be, appear on their face to be responsive as to form in all material respects with the applicable requirements purposes of the Act and the Rules and Regulations and the Trust Indenture Act and the rules and regulations flow-through share provisions of the Commission thereunder.
(vi) No consent, approval, authorization or order of any United States federal or New York, California or (with respect to matters arising under the Delaware General Corporation Law) Delaware court or governmental agency or body is required for the consummation of the transactions contemplated by this Agreement or the Indenture, except such as have been obtained under the Act and such as may be required under the securities and blue sky laws, rules or regulations of any jurisdiction in connection with the purchase and distribution of the Notes and related Guarantees by the agents and such other approvals as have been obtained.
(vii) Neither the issue and sale of the Notes (in the forms certified to by an authorized officer of the Company), the compliance by the Company and the Guarantor with all the provisions of this Agreement, the Indenture, the Notes or the Guarantees (in the form certified to by an authorized officer of the Guarantor), the consummation of the transactions herein or therein contemplated nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under the charter or bylaws of the Company or the Guarantor or the terms of any indenture or other agreement or instrument filed with the Commission and to which the Company or the Guarantor or any of the Guarantor's subsidiaries is a party or bound, or any order, decree, judgment or regulation (other than any federal or state securities or blue sky laws, rules or regulations) known to such counsel to be applicable to the Company or the Guarantor or any of the Guarantor's subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Guarantor or any of the Guarantor's subsidiaries.
(viii) To the best knowledge of such counsel, no holders of securities of the Company or the Guarantor have rights to the registration of such securities under the Registration Statement.
(ix) Such counsel confirms (i) that the statements in the Prospectus under the caption "Federal Income Tax Consequences", insofar as such statements constitute a summary of the legal matters referred to therein, fairly present the information disclosed therein in all material respects, (ii) the conformity in all material respects of the Notes (in the forms certified to by an authorized officer of the Company) to the statements relating thereto in the Prospectus, and (iii) the conformity in all material respects of the Indenture and the Guarantees to the statements relating thereto in the Prospectus under the captions "Description of Notes" and "Description of Debt Securities of Countrywide Home Loans and Related Guarantees of Countrywide Credit Industries." Such counsel shall also state that, in the course of their engagement to represent or advise the Company and the Guarantor professionally, they have not become aware of any pending legal proceeding before any court or administrative agency or authority or any arbitration tribunal, nor have they devoted substantive attention in the form of legal representation as to any current overtly threatened litigation against or directly affecting the Company or its subsidiaries or the Guarantor or its subsidiaries, in each case that is required to be described in the Registration Statement or the Prospectus and is not so described. In making the foregoing statement, they shall endeavor, to the extent they believe necessary, to determine from lawyers currently in their firm who have performed substantive legal services for the Company or the Guarantor, whether such services involved substantive attention in the form of legal representation concerning pending legal proceedings or overtly threatened litigation of the nature referred to above. Beyond that, they need not make any review, search or investigation of public files or records or files or records of the Company or the Guarantor, or of their respective transactions, or any other investigation or inquiry with respect to the foregoing statement. Such counsel shall also state that in the course of the preparation by the Company, the Guarantor and their counsel of the Registration Statement and Prospectus (other than the Incorporated Documents (as defined below)), such counsel attended conferences with certain of the officers of, and the independent public accountants for, the Company and the Guarantor, at which the Registration Statement and Prospectus were discussed. Given the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process, such counsel need not pass upon and need not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus including the Incorporated Documents, except as specifically described in the opinion set forth in paragraph (ix) above. Subject to the foregoing and on the basis of the information such counsel gained in the performance of the services referred to above, including information obtained from officers and other representatives of the Company and Guarantor, such counsel shall state that no facts have come to such counsel's attention that have caused it to believe that the Registration Statement, at the time it became effective, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, at its date or at the date hereof, included or includes, as the case may be, any untrue statement of material fact or omitted or omits, as the case may be, 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 such counsel need not express a view or belief with respect to (i) the financial statements, the related notes and schedules thereto or other financial and statistical data included or incorporated by reference in the Registration Statement and Prospectus or (ii) any part of the Registration Statement which shall constitute a Statement of Eligibility on Form T-1 under the Trust Indenture Act. References to the Prospectus in this Section 5(b) include any amendments or supplements thereto at the date hereof. 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 California, the State of Delaware (but only with respect to the Delaware General Corporation Law) or the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the agents, (B) as the matters involving the application of laws of the State of New York, to the extent specified in such opinion, upon the opinion of ▇▇▇▇▇ & Wood LLP being delivered to the agents as of the date thereof and (C) as to matters of fact, to the extent they deem proper, on certificates and oral or written statements and other information of or from public officials and officers and representatives of the Company, the Guarantor, their respective subsidiaries and others. In rendering the opinions set forth in paragraphs (iii) and (iv), such counsel may state that such opinions are subject to the following: (i) bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent conveyance, moratorium or other laws now or hereafter in effect affecting creditors' rights generally; and (ii) general principles of equity (including, without limitation, standards of materiality, good faith, fair dealing and reasonableness) whether such principles are considered in a proceeding in equity or at law. In rendering the opinions set forth above, such counsel need not express an opinion as to the legality, validity, binding effect or enforceability of any provision of the Notes, the Indenture or the Guarantees providing for payments thereunder in a currency other than currency of the United States of America to the extent that a court of competent jurisdiction will under applicable law convert any judgment rendered in such other currency into currency of the United States of America or to the extent that payment in a currency other than currency of the United States of America is contrary to applicable law. In rendering the opinions set forth above, such counsel may state that it has assumed, with the permission of the agents, that the amount of Notes to be issued from time to time will not violate any provision in any such agreement referred to in paragraph (vii) which imposes limits on the amount of debt of the Company, the Guarantor or any of the Guarantor's subsidiaries which may be outstanding at any one time (whether directly or indirectly, through satisfaction of financial ratios or otherwise).
(c) The Company and the Guarantor shall have furnished to the agents Agents, in form and substance satisfactory to the opinion or opinions Lead Manager and its counsel, a title insurance policy in respect of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇the patented claims comprising the Froome deposit located on the Black Fox Complex.
(d) The Company shall have furnished to the Agents a certificate of the Company, General Counsel signed by the Chief Executive Officer and the Chief Financial Officer of the Company and or any other officers of the GuarantorCompany acceptable to the Lead Manager, in its discretion, dated the date hereof, substantially as set forth below, with such additional qualifications and exceptions as shall be acceptable Closing Date to the agents effect that the signers of such certificate have carefully examined this Agreement and their counselthe Subscription Agreements and that:
(i) Each Subsidiary, if any, is a corporation, duly incorporated, validly existing the representations and in good standing under the laws warranties of the state Company in this Agreement and the Subscription Agreements are true and correct as of the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its incorporation, with part to be performed or satisfied at or prior to the corporate power and authority to own its properties and to conduct its business as described in the Prospectus.Closing Date; and
(ii) Each since the date of the Companymost recent financial statements included in the Public Record, there has been no Material Adverse Effect;
(e) The Agents shall have received on and as of the Guarantor and Closing Date satisfactory evidence of the Subsidiaries 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 other than jurisdictions in which the failure to so qualify, when considered in the aggregate and not individually, would not have a material adverse effect on the Company or the Guarantor and its Subsidiaries considered as one enterprise.
(iii) All the outstanding shares of capital stock of the Company and each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth 10393444 Canada Inc. in its jurisdiction of organization in writing from the Prospectus, all outstanding shares of capital stock of the Company and the Subsidiaries are owned by the Guarantor either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge appropriate governmental authority of such counsel, after due inquiry, any other security interests, claims, liens or encumbrancesjurisdiction.
(ivf) The outstanding shares of common stock of Prior to, or on, the Guarantor Closing Date the Company shall have been duly furnished to the Agents such further information, certificates and validly authorized and issued and are fully paid and nonassessabledocuments as the Agents may reasonably request.
(vg) Neither The Shares shall have been approved for listing on the issue NYSE and shall have been conditionally approved for listing, subject to the satisfaction of the customary conditions, on the TSX, subject only to official notice of issuance, and satisfactory evidence of such actions shall have been provided to the Agents.
(h) The Company represents and covenants that it will only use proceeds of the Offering as agreed to herein and it will not, directly or indirectly, use the proceeds of the Offering, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other Person:
(i) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of any sanctions administered or enforced by OFAC, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, the “Sanctions”); or
(ii) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the Offering, whether as Agent, advisor, investor or otherwise). The Company represents and covenants that for the past five (5) years, it has not knowingly engaged in, is not now knowingly engaging in, and will not engage in, and will use its best efforts to cause its directors, officers and key personnel not to engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(i) The Company shall not invest or otherwise use the proceeds received by the Company from its sale of the NotesShares in such a manner as would require the Company to register as an investment company under the Investment Company Act.
(j) At the Execution Time, the compliance by Company shall have furnished to the Company Lead Manager a letter substantially in the form of Exhibit B to this Agreement from each officer and director of the Guarantor with all Company. If any of the provisions of conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, the Indenture, the Notes or the Guarantees, 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 of, or constitute a default under the charter or by-laws of the Company or the Guarantor or, to the knowledge of such counsel, the terms of any indenture or other agreement or instrument to which the Company or the Guarantor or if any of the Guarantor's subsidiaries is a party opinions and certificates mentioned above or boundelsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Lead Manager and counsel for the Agents, this Agreement and all obligations of the Agents hereunder may be canceled at, or at any ordertime prior to, decree, law, judgment, rule or regulation known to the Closing Date by the Lead Manager. Notice of such counsel to cancellation shall be applicable given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered electronically, or at such other place as the Guarantor or any Lead Manager, on behalf of the Guarantor's subsidiaries of any courtAgents, regulatory bodyand the Company shall agree upon, administrative agency, governmental body or arbitraton the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Agents. The obligations of any agent 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 and the Guarantor Mexico contained herein as of the date hereofExecution Date, as of on the date of the effectiveness of any amendment to the Registration Statement (including the filing of any document incorporated by reference therein)Effective Date, as of the date of when any supplement to the Prospectus is filed with the Commission and as of each Settlement Closing Date, to the accuracy in all material respects of the statements of the Company and the Guarantor Mexico made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantor Mexico of their respective its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement shall have been issued, issued and no proceedings for that purpose shall have been instituted or threatened.;
(b) The Company and the Guarantor Mexico shall have furnished to the agents the opinion or opinions of ▇▇▇▇▇▇each Agent an opinion, ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel in form and substance reasonably satisfactory to the Company and Agents, of the Guarantor, Fiscal Attorney of the Federation or the Deputy Federal Fiscal Attorney for Financial Affairs of Mexico dated the date hereofExecution Date (or, substantially in the case of any applicable Terms Agreement, of either the Fiscal Attorney of the Federation, the Deputy Federal Fiscal Attorney for Financial Affairs of Mexico or the Deputy Director General of Legal Procedures of Credit of the Ministry of Finance and Public Credit dated as set forth below, with such additional qualifications and exceptions as shall be acceptable of the Closing Date) to the agents and their counseleffect that:
(i) Each pursuant to Mexico’s Constitution and other Mexican laws and regulations, and in particular to Article 4, fraction I, and Article 5, fractions I, II and III of the Company and the Guarantor is a corporation duly incorporatedGeneral Law of Public Debt, validly existing and in good standing under the laws of the state of its incorporation and Mexico has the corporate full power and authority to own its properties perform and to conduct its business as described in the Prospectus.
(ii) The Company and the Guarantor have the corporate power and authority to enter into this Agreement and the Terms Agreement (if applicable), and this Agreement and the Terms Agreement (if applicable) have been duly and validly authorized, executed and delivered by the Company and the Guarantor, respectively.
(iii) The form and general terms of the Notes have been duly and validly authorized and established in conformity comply with the terms and provisions of the Indenture by all necessary corporate action by the Company, and when the particular terms of the Notes have been duly established in accordance with the provisions of the Indenture, the Procedures and the resolutions of the Board of Directors of the Company and such Notes have been duly executed, authenticated and delivered against payment therefor in accordance with the provisions of the Indenture, the Procedures and this Agreement, will constitute the legalFiscal Agency Agreement, valid the Authorization and, if the opinion is being given pursuant to Section 2(b) hereof on account of Mexico having entered into a Terms Agreement, the applicable Terms Agreement; this Agreement, the Fiscal Agency Agreement, the Authorization and binding obligations of the Company, enforceable against the Company in accordance with their terms and the terms of the Indenture, and the holders of the Notes will be entitled to the benefits of the Indenture; and the Indenture has any applicable Terms Agreement have been duly authorized, executed and delivered by Mexico and, assuming that each of this Agreement, any applicable Terms Agreement, the Company Fiscal Agency Agreement and Guarantor, has been qualified under the Trust Indenture Act, and Authorization constitutes a legal, valid and legally binding obligation enforceable against agreement under New York law, each of this Agreement, any applicable Terms Agreement, the Company Fiscal Agency Agreement and the Guarantor Authorization constitutes a valid and legally binding agreement, enforceable in accordance with its respective terms., subject to laws of general applicability relating to or affecting creditors’ rights;
(ivii) The Guaranteespursuant to Mexico’s Constitution and other Mexican laws and regulations, and in the forms certified particular to by an authorized officer Article 5 of the GuarantorGeneral Law of Public Debt, Mexico has full power and authority to enter into, perform and comply with the terms and provisions of the Notes; the Notes have been duly and validly authorized by all necessary corporate action by in accordance with the Guarantor and, upon due issuance, authentication and delivery laws of the related Notes and due endorsement of the Guarantees, the Guarantees will have been duly Mexico; when executed, issued and delivered in accordance with the laws of Mexico, authenticated in accordance with the provisions of the Fiscal Agency Agreement and the Authorization and delivered to and paid for by the purchasers thereof in accordance with the terms hereof and the terms of any applicable Terms Agreement, the Notes will constitute the legalvalid, valid legally binding, direct, general and binding obligations unconditional External Indebtedness (as defined herein) of the Guarantor Mexico enforceable against the Guarantor in accordance with their terms and the terms of the Indenture, and the holders of the Notes upon which the Guarantees are endorsed will be entitled to the benefits of the Indenture.Fiscal Agency Agreement; such obligations shall not in any way be legally affected or impaired as a result of any use to be made by Mexico of the proceeds received by it from the sale of the Notes; and the Notes will rank pari passu, without any preference among themselves, with all other unsecured and unsubordinated External Indebtedness of Mexico;
(viii) The Registration Statement has become effective under neither the Act; any required filing execution and delivery of the ProspectusFiscal Agency Agreement, the Authorization, the Notes, this Agreement or any applicable Terms Agreement, nor the consummation of the transactions therein or herein contemplated nor compliance with the terms and provisions thereof or hereof, including performance of each of the obligations contained therein or herein (A) will conflict with, violate or result in a breach of the Political Constitution of Mexico or any law, rule or regulation of or applicable to Mexico (including without limitation the Federal Revenue Law for the Fiscal Year 2012, in particular, Article 2, concerning the authorization given to the Executive Branch, through the Ministry of Finance and Public Credit, to contract loans and issue securities in foreign markets to finance the Federal Budget for the Fiscal Year 2012 as well as for the purpose of exchanging or refinancing Mexico’s External Indebtedness, and any supplements theretoall other provisions included in such law (or, pursuant to Rule 424(b) has been made in the manner and within case of any applicable Terms Agreement, the time period required by Rule 424(b); to Federal Revenue Law for the knowledge of such counsel, no stop order suspending the effectiveness year of the Registration Statement has been issuedClosing Date)), no proceedings for that purpose have been instituted (B) will conflict with or threatened and result in a breach of any of the terms, conditions or provisions of any treaty, convention, material agreement or material instrument to which Mexico is a party or by which Mexico is bound or constitute a default thereunder or (C) will result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the revenues or assets of Mexico under any such agreement or instrument;
(iv) the Registration Statement and the Prospectus and their filing with the Commission have been duly authorized by Mexico, and the Registration Statement, as amended, has been duly executed by and on behalf of Mexico; the information in the Registration Statement and the Prospectus stated on the authority of public officials of Mexico has been stated in their official capacities thereunto duly authorized by Mexico; and all statements with respect to or involving matters of Mexican law set forth in the Registration Statement and the Prospectus are true and correct in all material respects;
(other than v) all authorizations, approvals and consents (iwhich shall be specified in such opinion and certified copies of which shall be furnished to the United States counsel to the Agents and the Mexican counsel to the Agents) from and registrations with all governmental authorities in Mexico that are necessary for the execution and delivery of this Agreement, the Fiscal Agency Agreement, the Authorization and any applicable Terms Agreement, and for the execution, issuance, sale and delivery of the Notes hereunder and the performance by Mexico of the covenants contained in this Agreement, the Fiscal Agency Agreement, the Authorization, any applicable Terms Agreement and the Notes have been obtained and are in full force and effect; once the Notes are issued, a notice is required to be delivered by Mexico to the National Banking and Securities Commission; provided, however, that the failure to give such notice shall not affect Mexico’s obligations under the Notes; all necessary action by Mexico in connection with the Notes has been duly taken, including the issuance of the Decrees of the President of Mexico to the Ministry of Finance and Public Credit with respect to the issuance of the Notes, dated December 2, 2009 and October 23, 2012;
(vi) under the laws of Mexico, specifically in accordance with Articles 3 and 4 of the Federal Code of Civil Procedures of Mexico, neither Mexico nor any of its properties has, with respect to any action, claim or proceeding arising out of or based upon this Agreement, the Fiscal Agency Agreement, the Authorization or any applicable Terms Agreement regarding the execution, issuance, sale and delivery of the Notes, any immunity from jurisdiction of any court or from set-off or any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise), except that under Article 4 of the Federal Code of Civil Procedures of Mexico, attachment prior to judgment or attachment in aid of execution will not be enforced by Mexican courts against any of the property of Mexico;
(vii) the financial statements and other financial and statistical information contained therein and choice of New York law in this Agreement, the Fiscal Agency Agreement (ii) including the Statement of Eligibility on Form T-1 filed as an exhibit Authorization pursuant thereto, as to which such counsel need express no opinion), as any applicable Terms Agreement and the Notes is a valid choice of their respective effective law and, accordingly, would be recognized and applied by the courts of Mexico if this Agreement, the Fiscal Agency Agreement, the Authorization, any applicable Terms Agreement or issue datesthe Notes or any claim made thereunder is brought before any such court (provided that in any proceedings in Mexico for the enforcement of this Agreement, the Fiscal Agency Agreement, the Authorization, any applicable Terms Agreement or the Notes, a Mexican court would apply Mexican procedural law); the irrevocable submission of Mexico pursuant to Section 15 hereof and Section 12 of the Fiscal Agency Agreement to the jurisdiction of any state or federal court in The Borough of Manhattan, The City of New York, in respect of any action by any Agent, or by any persons controlling such Agent, arising out of or based upon this Agreement or any action brought by any of the holders of Notes or the Fiscal Agent arising out of or based upon the Fiscal Agency Agreement, as the case may be, appear on their face and the waiver by Mexico of any objection to be responsive as the venue of any such proceeding in any such court are legal, valid and binding according to form in all material respects with the applicable requirements Article 566 of the Act Federal Code of Civil Procedures of Mexico; the waiver by Mexico pursuant to Section 15 hereof and the Rules and Regulations and the Trust Indenture Act and the rules and regulations Section 12 of the Commission thereunder.
(vi) No consent, approval, authorization or order Fiscal Agency Agreement of any United States federal immunity to jurisdiction or New Yorksovereign immunity to which it may otherwise be entitled (excluding, California in respect of actions brought against Mexico, attachment prior to judgment or (attachment in aid of execution, as set forth in Article 4 of the Federal Code of Civil Procedures) with respect to matters any action, claim or proceeding arising under out of or based upon this Agreement, any applicable Terms Agreement, the Delaware General Corporation Law) Delaware court or governmental agency or body is required for the consummation of the transactions contemplated by this Fiscal Agency Agreement or the Indenture, except such as have been obtained under the Act and such as may be required under the securities and blue sky laws, rules or regulations of any jurisdiction in connection with the purchase and distribution of the Notes and related Guarantees by the agents and such other approvals as have been obtained.
(vii) Neither the issue and sale of the Notes (in the forms certified to by an authorized officer of the Company), the compliance by the Company and the Guarantor with all the provisions of this Agreement, the Indenture, the Notes or the Guarantees (in the form certified to by an authorized officer of the Guarantor), the consummation of the transactions herein or therein contemplated nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under the charter or bylaws of the Company or the Guarantor or the terms of any indenture or other agreement or instrument filed with the Commission and to which the Company or the Guarantor or any of the Guarantor's subsidiaries is a party or bound, or any order, decree, judgment or regulation (other than any federal or state securities or blue sky laws, rules or regulations) known to such counsel to be applicable to the Company or the Guarantor or any of the Guarantor's subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Guarantor or any of the Guarantor's subsidiaries.
(viii) To the best knowledge of such counsel, no holders of securities of the Company or the Guarantor have rights to the registration of such securities under the Registration Statement.
(ix) Such counsel confirms (i) that the statements in the Prospectus under the caption "Federal Income Tax Consequences", insofar as such statements constitute a summary of the legal matters referred to therein, fairly present the information disclosed therein in all material respects, (ii) the conformity in all material respects of the Notes (in the forms certified to by an authorized officer of the Company) to the statements relating thereto in the Prospectus, and (iii) the conformity in all material respects of the Indenture and the Guarantees to the statements relating thereto in the Prospectus under the captions "Description of Notes" and "Description of Debt Securities of Countrywide Home Loans and Related Guarantees of Countrywide Credit Industries." Such counsel shall also state that, in the course of their engagement to represent or advise the Company and the Guarantor professionally, they have not become aware of any pending legal proceeding before any court or administrative agency or authority or any arbitration tribunal, nor have they devoted substantive attention in the form of legal representation as to any current overtly threatened litigation against or directly affecting the Company or its subsidiaries or the Guarantor or its subsidiaries, in each case that is required to be described in the Registration Statement or the Prospectus and is not so described. In making the foregoing statement, they shall endeavor, to the extent they believe necessary, to determine from lawyers currently in their firm who have performed substantive legal services for the Company or the Guarantor, whether such services involved substantive attention in the form of legal representation concerning pending legal proceedings or overtly threatened litigation of the nature referred to above. Beyond that, they need not make any review, search or investigation of public files or records or files or records of the Company or the Guarantor, or of their respective transactions, or any other investigation or inquiry with respect to the foregoing statement. Such counsel shall also state that in the course of the preparation by the Company, the Guarantor and their counsel of the Registration Statement and Prospectus (other than the Incorporated Documents (as defined below)), such counsel attended conferences with certain of the officers of, and the independent public accountants for, the Company and the Guarantor, at which the Registration Statement and Prospectus were discussed. Given the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process, such counsel need not pass upon and need not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus including the Incorporated Documents, except as specifically described in the opinion set forth in paragraph (ix) above. Subject to the foregoing and on the basis of the information such counsel gained in the performance of the services referred to above, including information obtained from officers and other representatives of the Company and Guarantor, such counsel shall state that no facts have come to such counsel's attention that have caused it to believe that the Registration Statement, at the time it became effective, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, at its date or at the date hereof, included or includes, as the case may be, or to any untrue statement right to which it may be entitled, based upon place of material fact residence or omitted domicile, is legal, valid and binding; the appointment of Mexico’s Consul General in The City of New York as agent to receive service of process on behalf of Mexico for the purposes described in Section 15 hereof and Section 12 of the Fiscal Agency Agreement is legal, valid and binding; service of process effected in the manner set forth in Section 15 hereof and Section 12 of the Fiscal Agency Agreement, assuming its validity under New York law, will be effective, to confer valid personal jurisdiction over Mexico;
(viii) in accordance with article 104, fracción III of the Constitution of Mexico, any action against Mexico arising out of or omitsbased on the Notes, or arising out of or based on this Agreement or any applicable Terms Agreement, may be instituted by the holders of the Notes or by the Agents, as the case may be, in any competent court in Mexico; any judgment obtained in a New York state or federal court sitting in The Borough of Manhattan, The City of New York, arising out of or in relation to state the obligations of Mexico under this Agreement, any applicable Terms Agreement or the Notes, as the case may be, would be enforceable, subject to the limitations described in clause (vi) above, against Mexico in the courts of Mexico pursuant to Articles 569 and 571 of the Federal Code of Civil Procedures of Mexico and Article 1347A of the Commerce Code, which provide, inter alia, that any judgment rendered outside Mexico may be enforced by Mexican courts, provided that:
(A) such judgment is obtained in compliance with the legal requirements of the jurisdiction of the court rendering such judgment and in compliance with all legal requirements of this Agreement, any applicable Terms Agreement or the Notes, as the case may be;
(B) such judgment is strictly for the payment of a material fact certain sum of money, provided that, under the Mexican Monetary Law, payments which should be made in Mexico in foreign currency, whether by agreement or upon a judgment of a Mexican court, may be discharged in Mexican currency at a rate of exchange for such currency prevailing at the time of payment;
(C) service of process was made personally on Mexico or on the appropriate process agent;
(D) such judgment does not contravene Mexican public policy or laws;
(E) the applicable procedure under the laws of Mexico with respect to the enforcement of foreign judgments (including the issuance of a letter rogatory by the competent authority of such jurisdiction requesting enforcement of such judgment and the certification of such judgment as authentic by the corresponding authorities of such jurisdiction in accordance with the laws thereof), is complied with;
(F) such judgment is final in the jurisdiction where obtained;
(G) the action in respect of which such judgment is rendered is not the subject matter of a lawsuit among the same parties pending before a Mexican court; and
(H) the courts of such jurisdiction recognize the principles of reciprocity in connection with the enforcement of foreign judgments in such jurisdiction;
(ix) to ensure the legality, validity, enforceability or admissibility in evidence of this Agreement, the Fiscal Agency Agreement (including the Authorization pursuant thereto), any applicable Terms Agreement or the Notes, it is not necessary to make that this Agreement, the statements thereinFiscal Agency Agreement (including the Authorization pursuant thereto), any applicable Terms Agreement or the Notes or any other document be filed, registered or recorded with, or executed or notarized before, any court or other authority in Mexico, or that any registration charge or stamp or similar tax be paid on or in respect of this Agreement, the Fiscal Agency Agreement, the Authorization, any applicable Terms Agreement or the Notes, or any other document, provided that, in the light event any legal proceedings are brought in any court of Mexico, a Spanish translation of the circumstances under which they were madedocuments required in such proceedings prepared by a court-appointed translator would, not misleadingpursuant to Article 271 of the Federal Code of Civil Procedures of Mexico, except have to be approved by such court after the defendant had been given an opportunity for a hearing as to the accuracy of such translation, and proceedings would thereafter be based upon such translation;
(x) pursuant to article 5, fraction II, second paragraph, of the General Law of Public Debt and article 196, fraction I, in relation with article 179 of the Income Tax Law, payments of principal or interest in respect of the Notes will be exempt from any withholding tax, provided that such counsel need Note is directly held by an individual or corporation who is not express a view resident of Mexico for tax purposes and that such Note is not held through a permanent establishment for tax purposes in Mexico to which such principal or belief interest payments are attributable, and the Note is not paid in Mexico; Mexico does not impose any stamp, registration or similar taxes payable by a foreign holder in connection with respect the purchase, ownership or disposition of the Notes; there is no stamp, income, registration, withholding or similar taxes imposed by Mexico or any political subdivision thereof by cause of the delivery, execution or enforcement of this Agreement, any applicable Terms Agreement, the Fiscal Agency Agreement, the Authorization or the Notes.
(xi) this Agreement, the Fiscal Agency Agreement, the Authorization, any applicable Terms Agreement and the Notes are in proper legal form under the laws of Mexico for the enforcement thereof against Mexico under the laws of Mexico, provided that, in the event any legal proceeding is brought in any court of Mexico, a Spanish translation of the documents required in such proceedings prepared by a court-appointed translator would, pursuant to Article 271 of the Federal Code of Civil Procedures of Mexico, have to be approved by such court after the defendant had been given an opportunity for a hearing as to the accuracy of such translation, and proceedings would thereafter be based upon such translation; and
(ixii) the financial statements, the related notes and schedules thereto or other financial and statistical data included or incorporated by reference information contained in the Registration Statement and Prospectus or (ii) any part of the Registration Statement which shall constitute a Statement of Eligibility on Form T-1 Supplement under the Trust Indenture Act. References to caption “Taxation—Mexican Taxation” fairly summarizes the Prospectus in this Section 5(b) include any amendments or supplements thereto at the date hereofprovisions of Mexican tax law therein described. In rendering such opinion, such counsel may rely (A) rely, without independent investigation on its part, as to all matters involving the application of laws of any jurisdiction other than the State of California, the State of Delaware (but only with respect to the Delaware General Corporation Law) or the governed by United States, to the extent they deem proper States Federal and specified in such opinion, New York law upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the agents, (B) as the matters involving the application of laws of the State of New York, to the extent specified in such opinion, upon the opinion of ▇▇▇▇▇ & Wood LLP being delivered to the agents as of the date thereof and (C) as to matters of fact, to the extent they deem proper, on certificates and oral or written statements and other information of or from public officials and officers and representatives of the Company, the Guarantor, their respective subsidiaries and others. In rendering the opinions set forth in paragraphs (iii) and (iv), such counsel may state that such opinions are subject to the following: (i) bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent conveyance, moratorium or other laws now or hereafter in effect affecting creditors' rights generally; and (ii) general principles of equity (including, without limitation, standards of materiality, good faith, fair dealing and reasonableness) whether such principles are considered in a proceeding in equity or at law. In rendering the opinions set forth above, such counsel need not express an opinion as to the legality, validity, binding effect or enforceability of any provision of the Notes, the Indenture or the Guarantees providing for payments thereunder in a currency other than currency of the United States of America to the extent that a court of competent jurisdiction will under applicable law convert any judgment rendered in such other currency into currency of the United States of America or to the extent that payment in a currency other than currency of the United States of America is contrary to applicable law. In rendering the opinions set forth above, such counsel may state that it has assumed, with the permission of the agents, that the amount of Notes to be issued from time to time will not violate any provision in any such agreement referred to in paragraph under subsection (viic) which imposes limits on the amount of debt of the Company, the Guarantor or any of the Guarantor's subsidiaries which may be outstanding at any one time (whether directly or indirectly, through satisfaction of financial ratios or otherwise).below;
(c) The Company and the Guarantor Each Agent shall have furnished to the agents the opinion or opinions of received from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the Company and the Guarantor, dated the date hereof, substantially as set forth below, with such additional qualifications and exceptions as shall be acceptable to the agents and their counsel:
(i) Each Subsidiary, if any, is a corporation, duly incorporated, validly existing and in good standing under the laws of the state of its incorporation, with the corporate power and authority to own its properties and to conduct its business as described in the Prospectus.
(ii) Each of the Company, the Guarantor and the Subsidiaries 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 other than jurisdictions in which the failure to so qualify, when considered in the aggregate and not individually, would not have a material adverse effect on the Company or the Guarantor and its Subsidiaries considered as one enterprise.
(iii) All the outstanding shares of capital stock of the Company and 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 Company and the Subsidiaries are owned by the Guarantor 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.
(iv) The outstanding shares of common stock of the Guarantor have been duly and validly authorized and issued and are fully paid and nonassessable.
(v) Neither the issue and sale of the Notes, the compliance by the Company and the Guarantor with all the provisions of this Agreement, the Indenture, the Notes or the Guarantees, 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 of, or constitute a default under the charter or by-laws of the Company or the Guarantor or, to the knowledge of such counsel, the terms of any indenture or other agreement or instrument to which the Company or the Guarantor or any of the Guarantor's subsidiaries is a party or bound, or any order, decree, law, judgment, rule or regulation known to such counsel to be applicable to the Company or the Guarantor or any of the Guarantor's subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrat
Appears in 1 contract
Conditions to the Obligations of the Agents. The obligations of any agent the Agents to solicit offers to purchase the Notes shall as agents of the Province, the obligations of any purchasers of the Notes sold through the Agents as agents, and any obligation of any Agent to purchase Notes pursuant to a Terms Agreement or otherwise will be subject to the accuracy of the representations and warranties on the part of the Company Province herein and the Guarantor contained herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement (including the filing of any document incorporated by reference therein), as of the date of any supplement to the Prospectus and as of each Settlement Date, to the accuracy of the statements of the Company and the Guarantor Province made in any certificates certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company Province of all its covenants and the Guarantor of their respective obligations hereunder agreements herein contained and to the following additional conditionsconditions precedent:
(a) No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall have been issued, issued and no proceedings for that purpose shall have been instituted or threatened; and the Prospectus and any Pricing Supplement shall have been timely filed with the SEC pursuant to Rule 424; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the U.S. Securities Act, shall have been filed with the SEC under the U.S. Securities Act.
(b) The Company and the Guarantor Province shall have furnished to the agents the opinion Agents, on or opinions of ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel prior to the Company and the GuarantorClosing Date, a written opinion dated the date hereofClosing Date of the Deputy Attorney General, substantially as Assistant Deputy Attorney General or Acting Assistant Deputy Attorney General of the Province or any solicitor who is an employee of the Crown and seconded to the Legal Services Branch, Ministry of Finance, addressed to the Minister of Finance of the Province to the effect that, based on the assumptions and subject to the qualifications set forth below, with such additional qualifications and exceptions as shall be acceptable to the agents and their counseltherein:
(i) Each of the Company and the Guarantor is a corporation duly incorporated, validly existing and in good standing under the laws of the state of its incorporation and has the corporate power and authority to own its properties and to conduct its business as described in the Prospectus.
(ii) The Company and the Guarantor have the corporate power and authority to enter into this Agreement and the Terms Agreement (if applicable), and this Agreement and the Terms Agreement (if applicable) have been duly and validly authorized, executed and delivered by the Company and the Guarantor, respectively.
(iii) The form and general terms of the Notes have been duly and validly authorized and established in conformity with the provisions of the Indenture by all necessary corporate action by the Company, and when the particular terms of the Notes have been duly established in accordance with the provisions of the Indenture, the Procedures and the resolutions of the Board of Directors of the Company and such Notes have been duly executed, authenticated and delivered against payment therefor in accordance with the provisions of the Indenture, the Procedures and this Agreement, will constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and the terms of the Indenture, and the holders of the Notes will be entitled to the benefits of the Indenture; and the Indenture has been duly authorized, executed and delivered by each the Province in accordance with the laws of the Company Province of Ontario and Guarantor, has been qualified under the Trust Indenture ActOrder or Orders of the Lieutenant Governor in Council applicable thereto, and constitutes a legal, valid and binding obligation enforceable against each agreement of the Company and the Guarantor Province, enforceable in accordance with its terms.;
(ii) the Fiscal Agency Agreement has been duly authorized, executed and delivered by the Province in accordance with the laws of the Province of Ontario and the Order or Orders of the Lieutenant Governor in Council applicable thereto, and, assuming due execution and delivery by the Fiscal Agent, constitutes a legal, valid and binding agreement of the Province, enforceable in accordance with its terms;
(iii) the Interest Calculation Agency Agreement has been duly authorized, executed and delivered by the Province in accordance with the laws of the Province of Ontario and the Order or Orders of the Lieutenant Governor in Council applicable thereto, and, assuming due execution and delivery by The Bank of New York Mellon, as calculation agent, constitutes a legal, valid and binding agreement of the Province, enforceable in accordance with its terms;
(iv) The Guaranteesthe Notes, as provided for in the forms certified to by an authorized officer of the Guarantor, have been duly and validly authorized by all necessary corporate action by the Guarantor andthis Agreement, upon due issuanceexecution on behalf of the Province in accordance with the laws of the Province of Ontario and the applicable Order or Orders of the Lieutenant Governor in Council, upon due authentication in accordance with the provisions of the Fiscal Agency Agreement and delivery thereof and payment therefor in accordance with the provisions of the related Notes and due endorsement of the Guaranteesthis Agreement, the Guarantees will have been be duly executed, issued and delivered authorized and will constitute the legal, valid and binding obligations of the Guarantor Province, enforceable against the Guarantor in accordance with their terms terms, provided that at the time of any such issue and sale, the terms aggregate principal amount of Notes issued (including such Notes being issued) as determined under the IndentureFinancial Administration Act (Ontario), and will not exceed the holders of the Notes upon which the Guarantees are endorsed will be entitled to the benefits of the Indenture.Authorized Amount;
(v) The Registration Statement has become effective the statements in the Prospectus under the Act; any required filing headings “Description of the Prospectus, Debt Securities — Canadian Income Tax Considerations” and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened and the Registration Statement and the Prospectus (other than (i) the financial statements and other financial and statistical information contained therein and (ii) the Statement of Eligibility on Form T-1 filed as an exhibit thereto, as to which such counsel need express no opinion), as of their respective effective or issue dates, as the case may be, appear on their face to be responsive as to form “Canadian Tax Considerations” are accurate in all material respects with subject to the applicable requirements of the Act and the Rules and Regulations and the Trust Indenture Act and the rules and regulations of the Commission thereunder.qualifications therein stated;
(vi) No the payment of principal of and interest on the Notes will be a charge on and payable out of the Consolidated Revenue Fund of the Province of Ontario (as defined in the Financial Administration Act (Ontario));
(vii) no authorization, consent, approvalwaiver or approval of, authorization or order filing, registration, qualification or recording with, any governmental authority of any United States federal the Province of Ontario or New York, California or (with respect to matters arising under the Delaware General Corporation Law) Delaware court or governmental agency or body of Canada is required for the consummation of the transactions contemplated by this Agreement or the Indenture, except such as have been obtained under the Act and such as may be required under the securities and blue sky laws, rules or regulations of any jurisdiction in connection with the purchase execution, delivery and distribution of the Notes and related Guarantees performance by the agents and such other approvals as have been obtained.
(vii) Neither Province of this Agreement, the Fiscal Agency Agreement, the Interest Calculation Agency Agreement or the issue and sale of the Notes (by the Province in the forms certified to by an authorized officer manner contemplated in this Agreement and the Prospectus, except for the Order or Orders of the CompanyLieutenant Governor in Council applicable thereto, and an approval under section 28 of the Financial Administration Act (Ontario), which have been obtained;
(viii) no stamp or other similar duty or levy is payable under the compliance laws of the Province of Ontario or the federal laws of Canada applicable in the Province of Ontario in connection with the execution, delivery and performance by the Company and the Guarantor with all the provisions Province of this Agreement, the IndentureFiscal Agency Agreement, the Interest Calculation Agency Agreement or in connection with the issue and sale of the Notes or by the Guarantees (Province in the form certified to by an authorized officer of the Guarantor)manner contemplated in this Agreement, the consummation Time of Sale Information and the transactions herein or therein contemplated nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under the charter or bylaws of the Company or the Guarantor or the terms of any indenture or other agreement or instrument filed with the Commission and to which the Company or the Guarantor or any of the Guarantor's subsidiaries is a party or bound, or any order, decree, judgment or regulation (other than any federal or state securities or blue sky laws, rules or regulations) known to such counsel to be applicable to the Company or the Guarantor or any of the Guarantor's subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Guarantor or any of the Guarantor's subsidiaries.
(viii) To the best knowledge of such counsel, no holders of securities of the Company or the Guarantor have rights to the registration of such securities under the Registration Statement.Prospectus; and
(ix) Such Her Majesty the Queen in right of Ontario may be sued in the courts of the Province of Ontario with regard to any claims arising out of or relating to the obligations of the Province under the Notes. No law in the Province of Ontario requires the consent of any public official or authority for suit to be brought or judgment to be obtained against Her Majesty the Queen in right of Ontario arising out of or relating to the obligations of the Province under the Notes, though in certain circumstances prior notice and particulars of a claim must be given to Her Majesty the Queen in right of Ontario. An amount payable by Her Majesty the Queen in right of Ontario under an order of a court of the Province of Ontario that is final and not subject to appeal is payable out of the Consolidated Revenue Fund of the Province of Ontario pursuant to the Proceedings Against the Crown Act (Ontario).
(c) The Agents shall have received on the Closing Date from Shearman & Sterling LLP, United States counsel confirms to the Province, favorable opinions dated the Closing Date to the effect that:
(i) that the statements in the Prospectus under the caption "Federal Income Tax Consequences"“Description of the Notes” and “Plan of Distribution”, in each case, insofar as such statements constitute a summary summaries of documents referred to therein, fairly summarize in all material respects the documents referred to therein; and
(ii) the statements in the Prospectus under the caption “Description of Debt Securities — United States Federal Income Tax Considerations”, as supplemented by “United States Federal Income Tax Considerations”, insofar as such statements constitute summaries of legal matters referred to therein, fairly present the information disclosed therein in all material respects, (ii) the conformity summarize in all material respects of the Notes (in the forms certified to by an authorized officer of the Company) to the statements relating thereto in the Prospectus, and (iii) the conformity in all material respects of the Indenture and the Guarantees to the statements relating thereto in the Prospectus under the captions "Description of Notes" and "Description of Debt Securities of Countrywide Home Loans and Related Guarantees of Countrywide Credit Industries." Such counsel shall also state that, in the course of their engagement to represent or advise the Company and the Guarantor professionally, they have not become aware of any pending legal proceeding before any court or administrative agency or authority or any arbitration tribunal, nor have they devoted substantive attention in the form of legal representation as to any current overtly threatened litigation against or directly affecting the Company or its subsidiaries or the Guarantor or its subsidiaries, in each case that is required to be described in the Registration Statement or the Prospectus and is not so described. In making the foregoing statement, they shall endeavor, to the extent they believe necessary, to determine from lawyers currently in their firm who have performed substantive legal services for the Company or the Guarantor, whether such services involved substantive attention in the form of legal representation concerning pending legal proceedings or overtly threatened litigation of the nature matters referred to above. Beyond that, they need not make any review, search or investigation of public files or records or files or records of the Company or the Guarantor, or of their respective transactions, or any other investigation or inquiry with respect to the foregoing statementtherein. Such counsel shall also state that in the course of the preparation by the Companyalthough they have not verified, the Guarantor and their counsel of the Registration Statement and Prospectus (other than the Incorporated Documents (as defined below)), such counsel attended conferences with certain of the officers of, and the independent public accountants for, the Company and the Guarantor, at which the Registration Statement and Prospectus were discussed. Given the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process, such counsel need are not pass passing upon and need do not assume any responsibility for for, the accuracy, completeness or fairness of the statements contained in the Registration Statement and or the Prospectus (including the Incorporated Documentsdocuments incorporated by reference therein), except as specifically described such counsel has, however, generally reviewed and discussed such statements with representatives of the Ontario Financing Authority and Ministry of Finance of the Province and, in the opinion of such counsel, (A) each of the Registration Statement and the Prospectus, excluding the documents incorporated by reference therein, and any supplements or amendments thereto (other than the financial statements and other financial or statistical data contained therein or omitted therefrom, as to which such counsel need not express any opinion) appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Securities Act and the applicable rules and regulations of the SEC thereunder; and (B) each of the documents incorporated by reference in the Prospectus (other than the financial statements and other financial or statistical data contained therein or omitted therefrom, as to which such counsel need express no opinion), except to the extent that any statement therein is modified or superseded in the Prospectus, at the time it was filed with the SEC, appears on its face to be appropriately responsive in all material respects to the requirements of the U.S. Exchange Act and the applicable rules and regulations of the SEC thereunder. Such counsel shall also state that, subject to the limitations set forth in paragraph (ix) above. Subject to the foregoing and on the basis of the information such counsel gained immediately preceding paragraph, in the performance course of the services referred to abovesuch review and discussion, including information obtained from officers and other representatives of the Company and Guarantor, such counsel shall state that no facts have come to such counsel's ’s attention that have which caused it them to believe that (A) the Registration StatementStatement (including the documents incorporated by reference therein, at other than the time it became effectivefinancial statements and other financial or statistical data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained any an untrue statement of a material fact or omitted to state any a material fact required to be stated therein or necessary in order to make the statements therein not misleading, (B) the Prospectus as amended or that supplemented, if applicable (including the Prospectusdocuments incorporated by reference therein, at its date other than the financial statements and other financial or at statistical data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date hereofof such Prospectus as amended or supplemented, included if applicable, or includesthe Closing Date, as the case may be, any contained or contains an untrue statement of a material fact or omitted or omits, as the case may be, omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that or (C) if applicable, the Time of Sale Information, at the Time of Sale (other than the financial statements and other financial or statistical data contained therein or omitted therefrom, as to which such counsel need has not express been requested to comment), contained any untrue statement of a view material fact or belief with respect omitted to (i) state a material fact necessary in order to make the financial statementsstatements therein, the related notes and schedules thereto or other financial and statistical data included or incorporated by reference in the Registration Statement and Prospectus or (ii) any part light of the Registration Statement circumstances under which shall constitute a Statement of Eligibility on Form T-1 under the Trust Indenture Act. References to the Prospectus in this Section 5(b) include any amendments or supplements thereto at the date hereofthey were made, not misleading. In rendering giving such opinionopinions, such counsel may rely (A) rely, without independent investigation, as to matters involving relating to the application of laws of any jurisdiction other than the State Province of California, the State of Delaware (but only with respect to the Delaware General Corporation Law) Ontario or the United Statesfederal laws of Canada applicable therein, to the extent they deem proper and specified in such opinion, upon on the opinion of other counsel the Deputy Attorney General, Assistant Deputy Attorney General or Acting Assistant Deputy Attorney General of good standing whom they believe the Province or any solicitor who is an employee of the Crown and seconded to be reliable and who are satisfactory the Legal Services Branch, Ministry of Finance, rendered pursuant to Section 5(b) hereof.
(d) The Agents shall have received on the Closing Date from Stikeman Elliott LLP, Canadian counsel for the agentsAgents, (B) as a favorable opinion dated the matters involving the application of laws of the State of New York, to the extent specified in such opinion, upon the opinion of ▇▇▇▇▇ & Wood LLP being delivered to the agents as of the date thereof and (C) as to matters of fact, to the extent they deem proper, on certificates and oral or written statements and other information of or from public officials and officers and representatives of the Company, the Guarantor, their respective subsidiaries and others. In rendering the opinions set forth in paragraphs (iii) and (iv), such counsel may state that such opinions are subject to the following: (i) bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent conveyance, moratorium or other laws now or hereafter in effect affecting creditors' rights generally; and (ii) general principles of equity (including, without limitation, standards of materiality, good faith, fair dealing and reasonableness) whether such principles are considered in a proceeding in equity or at law. In rendering the opinions set forth above, such counsel need not express an opinion Closing Date as to the legality, validity, binding effect or enforceability of any provision validity of the Notes, Notes and as to the Indenture or proceedings and other related matters incident to the Guarantees providing for payments thereunder in a currency other than currency issuance and sale of the United States of America to the extent that a court of competent jurisdiction will under applicable law convert any judgment rendered in such other currency into currency of the United States of America or to the extent that payment in a currency other than currency of the United States of America is contrary to applicable law. In rendering the opinions set forth above, such counsel may state that it has assumed, with the permission of the agents, that the amount of Notes to be issued from time to time will not violate any provision in any such agreement referred to in paragraph (vii) which imposes limits on the amount of debt of the CompanyClosing Date, the Guarantor or any of the Guarantor's subsidiaries which may be outstanding at any one time (whether directly or indirectly, through satisfaction of financial ratios or otherwise).
(c) The Company and the Guarantor Agents, shall have furnished to received on the agents the opinion or opinions of ▇Closing Date from ▇▇▇▇▇ ▇. ▇▇▇ & ▇▇▇▇▇▇▇▇ LLP a favorable opinion dated the Closing Date with respect to the Registration Statement and the Prospectus, General Counsel including the form thereof, and other related matters as the Agents may reasonably require. In giving their opinion, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely upon the opinion of Stikeman Elliott LLP as to matters of Canadian and Ontario law.
(e) The Province shall have furnished to the Agents, on the Closing Date a certificate of the Company and Province, signed by the Guarantorduly authorized officer of the Province (who may rely as to proceedings pending or contemplated upon the best of his knowledge), dated the date hereofClosing Date, substantially as set forth below, with such additional qualifications and exceptions as shall be acceptable to the agents and their counseleffect that:
(i) Each Subsidiary, if any, is a corporation, duly incorporated, validly existing the representations and in good standing under the laws warranties of the state Province in this Agreement are true and correct in all material respects on and as of its incorporation, the Closing Date with the corporate power same effect as if made on the Closing Date and authority the Province has complied with all the agreements and satisfied all the conditions on its part to own its properties and be performed or satisfied at or prior to conduct its business as described in the Prospectus.Closing Date;
(ii) Each no stop order suspending the effectiveness of the CompanyRegistration Statement, as amended, has been issued and no proceedings for that purpose have been instituted or, to the Guarantor and the Subsidiaries 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 other than jurisdictions in which the failure to so qualifyProvince’s knowledge, when considered in the aggregate and not individually, would not have a material adverse effect on the Company or the Guarantor and its Subsidiaries considered as one enterprise.threatened; and
(iii) All there has been no material adverse change in the outstanding shares of capital stock financial, economic or political conditions of the Company and each Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise Province from those set forth in or contemplated by the Prospectus, all outstanding shares of capital stock of the Company Registration Statement and the Subsidiaries are owned by Prospectus other than changes arising in the Guarantor either directly or through wholly owned subsidiaries free ordinary and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interests, claims, liens or encumbrancesnormal course.
(ivf) The outstanding shares of common stock of On the Guarantor have been duly Closing Date and validly authorized and issued and are fully paid and nonassessable.
(v) Neither the issue and sale of the Notes, the compliance by the Company and the Guarantor on each Settlement Date with all the provisions of this respect to any applicable Terms Agreement, the IndentureAgents shall have been furnished with such further reasonable information, certificates, opinions and documents as the Notes or Agents and the Guarantees, the consummation Province agree in such Terms Agreement. The obligations of any other Agent to purchase Notes pursuant to any Terms Agreement will be subject to the further condition that subsequent to the execution of such Terms Agreement and on or prior to the Settlement Date with respect to such Terms Agreement, there shall not have been any downgrading in the ratings of any of the transactions herein or therein contemplated nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under the charter or byProvince’s long-laws of the Company or the Guarantor or, to the knowledge of such counsel, the terms of any indenture or other agreement or instrument to which the Company or the Guarantor term debt securities or any of the Guarantor's subsidiaries is Notes issued under the Program by ▇▇▇▇▇’▇ Investors Service Inc. or Standard & Poor’s Ratings Services, a party or bound, or any order, decree, law, judgment, rule or regulation known to such counsel to be applicable to the Company or the Guarantor or division of McGraw Hill Financial Inc. If any of the Guarantor's subsidiaries 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 cancelled at, or at any courttime prior to, regulatory bodythe Closing Date by the Agents and any Terms Agreement and this Agreement and all obligations of the Agents thereunder and hereunder may be cancelled at, administrative agencyor at any time prior to, governmental body the applicable Settlement Date by the Agents party thereto. Notice of such cancellation shall be given to the Province in writing or arbitratby telephone or facsimile transmission, in either case confirmed in writing.
Appears in 1 contract
Conditions to the Obligations of the Agents. The obligations of any 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 and the Guarantor contained herein as of the date hereof, as of the date of the effectiveness of any amendment to the Registration Statement (including the filing of any document incorporated by reference therein), as of the date of any supplement to the Prospectus and as of each Settlement Date, to the accuracy of the statements of the Company and the Guarantor made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantor of their respective obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration 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 and the Guarantor shall have furnished to the agents the opinion or opinions of ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Company and the Guarantor, dated the date hereof, substantially as set forth below, with such additional qualifications and exceptions as shall be acceptable to the agents and their counsel:
(i) Each of the Company and the Guarantor is a corporation duly incorporated, validly existing and in good standing under the laws of the state of its incorporation and has the corporate power and authority to own its properties and to conduct its business as described in the Prospectus.
(ii) The Company and the Guarantor have the corporate power and authority to enter into this Agreement and the Terms Agreement (if applicable), and this Agreement and the Terms Agreement (if applicable) have been duly and validly authorized, executed and delivered by the Company and the Guarantor, respectively.
(iii) The form and general terms of the Notes have been duly and validly authorized and established in conformity with the provisions of the Indenture by all necessary corporate action by the Company, and when the particular terms of the Notes have been duly established in accordance with the provisions of the Indenture, the Procedures and the resolutions of the Board of Directors of the Company and such Notes have been duly executed, authenticated and delivered against payment therefor in accordance with the provisions of the Indenture, the Procedures and this Agreement, will constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and the terms of the Indenture, and the holders of the Notes will be entitled to the benefits of the Indenture; and the Indenture has been duly authorized, executed and delivered by each of the Company and Guarantor, has been qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against each of the Company and the Guarantor in accordance with its terms.
(iv) The Guarantees, in the forms certified to by an authorized officer of the Guarantor, have been duly and validly authorized by all necessary corporate action by the Guarantor and, upon due issuance, authentication and delivery of the related Notes and due endorsement of the Guarantees, the Guarantees will have been duly executed, issued and delivered and will constitute the legal, valid and binding obligations of the Guarantor enforceable against the Guarantor in accordance with their terms and the terms of the Indenture, and the holders of the Notes upon which the Guarantees are endorsed will be entitled to the benefits of the Indenture.
(v) The Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened and the Registration Statement and the Prospectus (other than (i) the financial statements and other financial and statistical information contained therein and (ii) the Statement of Eligibility on Form T-1 filed as an exhibit thereto, as to which such counsel need express no opinion), as of their respective effective or issue dates, as the case may be, appear on their face to be responsive as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations and the Trust Indenture Act and the rules and regulations of the Commission thereunder.
(vi) No consent, approval, authorization or order of any United States federal or New York, California or (with respect to matters arising under the Delaware General Corporation Law) Delaware court or governmental agency or body is required for the consummation of the transactions contemplated by this Agreement or the Indenture, except such as have been obtained under the Act and such as may be required under the securities and blue sky laws, rules or regulations of any jurisdiction in connection with the purchase and distribution of the Notes and related Guarantees by the agents and such other approvals as have been obtained.
(vii) Neither the issue and sale of the Notes (in the forms certified to by an authorized officer of the Company), the compliance by the Company and the Guarantor with all the provisions of this Agreement, the Indenture, the Notes or the Guarantees (in the form certified to by an authorized officer of the Guarantor), the consummation of the transactions herein or therein contemplated nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under the charter or bylaws of the Company or the Guarantor or the terms of any indenture or other agreement or instrument filed with the Commission and to which the Company or the Guarantor or any of the Guarantor's subsidiaries is a party or bound, or any order, decree, judgment or regulation (other than any federal or state securities or blue sky laws, rules or regulations) known to such counsel to be applicable to the Company or the Guarantor or any of the Guarantor's subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Guarantor or any of the Guarantor's subsidiaries.
(viii) To the best knowledge of such counsel, no holders of securities of the Company or the Guarantor have rights to the registration of such securities under the Registration Statement.
(ix) Such counsel confirms (i) that the statements in the Prospectus under the caption "Material Federal Income Tax Consequences", insofar as such statements constitute a summary of the legal matters referred to therein, fairly present the information disclosed therein in all material respects, (ii) the conformity in all material respects of the Notes (in the forms certified to by an authorized officer of the Company) to the statements relating thereto in the Prospectus, and (iii) the conformity in all material respects of the Indenture and the Guarantees to the statements relating thereto in the Prospectus under the captions "Description of Notes" and "Description of Debt Securities of Countrywide Home Loans and Related Guarantees of Countrywide Credit IndustriesGuarantees." Such counsel shall also state that, in the course of their engagement to represent or advise the Company and the Guarantor professionally, they have not become aware of any pending legal proceeding before any court or administrative agency or authority or any arbitration tribunal, nor have they devoted substantive attention in the form of legal representation as to any current overtly threatened litigation against or directly affecting the Company or its subsidiaries or the Guarantor or its subsidiaries, in each case that is required to be described in the Registration Statement or the Prospectus and is not so described. In making the foregoing statement, they shall endeavor, to the extent they believe necessary, to determine from lawyers currently in their firm who have performed substantive legal services for the Company or the Guarantor, whether such services involved substantive attention in the form of legal representation concerning pending legal proceedings or overtly threatened litigation of the nature referred to above. Beyond that, they need not make any review, search or investigation of public files or records or files or records of the Company or the Guarantor, or of their respective transactions, or any other investigation or inquiry with respect to the foregoing statement. Such counsel shall also state that in the course of the preparation by the Company, the Guarantor and their counsel of the Registration Statement and Prospectus (other than the Incorporated Documents (as defined below)), such counsel attended conferences with certain of the officers of, and the independent public accountants for, the Company and the Guarantor, at which the Registration Statement and Prospectus were discussed. Given the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process, such counsel need not pass upon and need not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus including the Incorporated Documents, except as specifically described in the opinion set forth in paragraph (ix) above. Subject to the foregoing and on the basis of the information such counsel gained in the performance of the services referred to above, including information obtained from officers and other representatives of the Company and Guarantor, such counsel shall state that no facts have come to such counsel's attention that have caused it to believe that the Registration Statement, at the time it became effective, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, at its date or at the date hereof, included or includes, as the case may be, any untrue statement of material fact or omitted or omits, as the case may be, 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 such counsel need not express a view or belief with respect to (i) the financial statements, the related notes and schedules thereto or other financial and statistical data included or incorporated by reference in the Registration Statement and Prospectus or (ii) any part of the Registration Statement which shall constitute a Statement of Eligibility on Form T-1 under the Trust Indenture Act. References to the Prospectus in this Section 5(b) include any amendments or supplements thereto at the date hereof. 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 California, the State of Delaware (but only with respect to the Delaware General Corporation Law) or the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the agents, (B) as the matters involving the application of laws of the State of New York, to the extent specified in such opinion, upon the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ & Wood ▇▇▇▇ LLP being delivered to the agents as of the date thereof and (C) as to matters of fact, to the extent they deem proper, on certificates and oral or written statements and other information of or from public officials and officers and representatives of the Company, the Guarantor, their respective subsidiaries and others. In rendering the opinions set forth in paragraphs (iii) and (iv), such counsel may state that such opinions are subject to the following: (i) bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent conveyance, moratorium or other laws now or hereafter in effect affecting creditors' rights generally; and (ii) general principles of equity (including, without limitation, standards of materiality, good faith, fair dealing and reasonableness) whether such principles are considered in a proceeding in equity or at law. In rendering the opinions set forth above, such counsel need not express an opinion as to the legality, validity, binding effect or enforceability of any provision of the Notes, the Indenture or the Guarantees providing for payments thereunder in a currency other than currency of the United States of America to the extent that a court of competent jurisdiction will under applicable law convert any judgment rendered in such other currency into currency of the United States of America or to the extent that payment in a currency other than currency of the United States of America is contrary to applicable law. In rendering the opinions set forth above, such counsel may state that it has assumed, with the permission of the agents, that the amount of Notes to be issued from time to time will not violate any provision in any such agreement referred to in paragraph (vii) which imposes limits on the amount of debt of the Company, the Guarantor or any of the Guarantor's subsidiaries which may be outstanding at any one time (whether directly or indirectly, through satisfaction of financial ratios or otherwise).
(c) The Company and the Guarantor shall have furnished to the agents the opinion or opinions of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the Company and the Guarantor, dated the date hereof, substantially as set forth below, with such additional qualifications and exceptions as shall be acceptable to the agents and their counsel:
(i) Each Subsidiary, if any, is a corporation, duly incorporated, validly existing and in good standing under the laws of the state of its incorporation, with the corporate power and authority to own its properties and to conduct its business as described in the Prospectus.
(ii) Each of the Company, the Guarantor and the Subsidiaries 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 other than jurisdictions in which the failure to so qualify, when considered in the aggregate and not individually, would not have a material adverse effect on the Company or the Guarantor and its Subsidiaries considered as one enterprise.
(iii) All the outstanding shares of capital stock of the Company and 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 Company and the Subsidiaries are owned by the Guarantor 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.
(iv) The outstanding shares of common stock of the Guarantor have been duly and validly authorized and issued and are fully paid and nonassessable.
(v) Neither the issue and sale of the Notes, the compliance by the Company and the Guarantor with all the provisions of this Agreement, the Indenture, the Notes or the Guarantees, 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 of, or constitute a default under the charter or by-laws of the Company or the Guarantor or, to the knowledge of such counsel, the terms of any indenture or other agreement or instrument to which the Company or the Guarantor or any of the Guarantor's subsidiaries is a party or bound, or any order, decree, law, judgment, rule or regulation known to such counsel to be applicable to the Company or the Guarantor or any of the Guarantor's subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitratarbitrator having jurisdiction over the Comp
Appears in 1 contract
Sources: Selling Agency Agreement (Countrywide Home Loans Inc)
Conditions to the Obligations of the Agents. The obligations of any agent 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 and the Guarantor Mexico contained herein as of the date hereofExecution Date, as of on the date of the effectiveness of any amendment to the Registration Statement (including the filing of any document incorporated by reference therein)Effective Date, as of the date of when any supplement to the Prospectus is filed with the Commission and as of each Settlement Closing Date, to the accuracy in all material respects of the statements of the Company and the Guarantor Mexico made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantor Mexico of their respective its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement shall have been issued, issued and no proceedings for that purpose shall have been instituted or threatened.;
(b) The Company and the Guarantor Mexico shall have furnished to each Agent an opinion, in form and substance reasonably satisfactory to the agents Agents, of the Fiscal Attorney or the Deputy Federal Fiscal Attorney for Financial Affairs of the Federation dated the Execution Date (or, in the case of any applicable Terms Agreement, of either the Fiscal Attorney of the Federation, the Deputy Federal Fiscal Attorney for Financial Affairs of the Federation or the Deputy Director General of Legal Procedures of Credit of the Ministry of Finance and Public Credit dated as of the Closing Date) to the effect that:
(i) pursuant to Mexico’s Constitution and other Mexican laws and regulations, and in particular to Article 4, fraction I, and Article 5, fractions I, II and III of the General Law of Public Debt, Mexico has full power and authority to perform and comply with the terms and provisions of this Agreement, the Fiscal Agency Agreement, the Authorization and, if the opinion is being given pursuant to Section 2(b) hereof on account of Mexico having entered into a Terms Agreement, the applicable Terms Agreement; this Agreement, the Fiscal Agency Agreement, the Authorization and any applicable Terms Agreement have been duly authorized, executed and delivered by Mexico and, assuming that each of this Agreement, any applicable Terms Agreement, the Fiscal Agency Agreement and the Authorization constitutes a valid and legally binding agreement under New York law, each of this Agreement, any applicable Terms Agreement, the Fiscal Agency Agreement and the Authorization constitutes a valid and legally binding agreement, enforceable in accordance with its respective terms;
(ii) pursuant to Mexico’s Constitution and other Mexican laws and regulations, and in particular to Article 5 of the General Law of Public Debt, Mexico has full power and authority to enter into, perform and comply with the terms and provisions of the Notes; the Notes have been duly authorized in accordance with the laws of Mexico; when executed, issued and delivered in accordance with the laws of Mexico, authenticated in accordance with the provisions of the Fiscal Agency Agreement and the Authorization and delivered to and paid for by the purchasers thereof in accordance with the terms hereof and the terms of any applicable Terms Agreement, the Notes will constitute valid, legally binding, direct, general and unconditional External Indebtedness (as defined herein) of Mexico enforceable in accordance with their terms and entitled to the benefits of the Fiscal Agency Agreement; such obligations shall not in any way be legally affected or impaired as a result of any use to be made by Mexico of the proceeds received by it from the sale of the Notes; and the Notes will rank pari passu, without any preference among themselves, with all other unsecured and unsubordinated External Indebtedness of Mexico;
(iii) neither the execution and delivery of the Fiscal Agency Agreement, the Authorization, the Notes, this Agreement or any applicable Terms Agreement, nor the consummation of the transactions therein or herein contemplated nor compliance with the terms and provisions thereof or hereof, including performance of each of the obligations contained therein or herein (A) will conflict with, violate or result in a breach of the Political Constitution of Mexico or any law, rule or regulation of or applicable to Mexico (including without limitation the Federal Revenue Law for the Fiscal Year 2008, in particular, Article 2, second paragraph, concerning the authorization given to the Executive Branch to contract for the issuance of securities on foreign markets, for the purposes of exchanging or refinancing Mexico’s external indebtedness, and all other provisions included in such law (or, in the case of any applicable Terms Agreement, the Federal Revenue Law for the year of the Closing Date)), (B) will conflict with or result in a breach of any of the terms, conditions or provisions of any treaty, convention, material agreement or material instrument to which Mexico is a party or by which Mexico is bound or constitute a default thereunder or (C) will result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the revenues or assets of Mexico under any such agreement or instrument;
(iv) the Registration Statement and the Prospectus and their filing with the Commission have been duly authorized by Mexico, and the Registration Statement, as amended, has been duly executed by and on behalf of Mexico; the information in the Registration Statement and the Prospectus stated on the authority of public officials of Mexico has been stated in their official capacities thereunto duly authorized by Mexico; and all statements with respect to or involving matters of Mexican law set forth in the Registration Statement and the Prospectus are true and correct in all material respects;
(v) all authorizations, approvals and consents (which shall be specified in such opinion and certified copies of which shall be furnished to the United States counsel to the Agents and the Mexican counsel to the Agents) from and registrations with all governmental authorities in Mexico that are necessary for the execution and delivery of this Agreement, the Fiscal Agency Agreement, the Authorization and any applicable Terms Agreement, and for the execution, issuance, sale and delivery of the Notes hereunder and the performance by Mexico of the covenants contained in this Agreement, the Fiscal Agency Agreement, the Authorization, any applicable Terms Agreement and the Notes have been obtained and are in full force and effect; once the Notes are issued, a notice is required to be filed by Mexico with the National Banking and Securities Commission; provided, however, that the failure to effect such notice shall not affect Mexico’s obligations under the Notes; all necessary action by Mexico in connection with the Notes has been duly taken, including the issuance of the Decrees of the President of Mexico to the Ministry of Finance and Public Credit with respect to the issuance of the Notes, dated December 29, 2004 and December 19, 2007;
(vi) under the laws of Mexico, specifically in accordance with Articles 3 and 4 of the Federal Code of Civil Procedures of Mexico, neither Mexico nor any of its properties has, with respect to any action, claim or proceeding arising out of or based upon this Agreement, the Fiscal Agency Agreement, the Authorization or any applicable Terms Agreement regarding the execution, issuance, sale and delivery of the Notes, any immunity from jurisdiction of any court or from set-off or any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise), except that under Article 4 of the Federal Code of Civil Procedures of Mexico, attachment prior to judgment or attachment in aid of execution will not be enforced by Mexican courts against the property of Mexico;
(vii) the choice of New York law in this Agreement, the Fiscal Agency Agreement (including the Authorization pursuant thereto), any applicable Terms Agreement and the Notes is a valid choice of law and, accordingly, would be recognized and applied by the courts of Mexico if this Agreement, the Fiscal Agency Agreement, the Authorization, any applicable Terms Agreement or the Notes or any claim made thereunder is brought before any such court (provided that in any proceedings in Mexico for the enforcement of this Agreement, the Fiscal Agency Agreement, the Authorization, any applicable Terms Agreement or the Notes, a Mexican court would apply Mexican procedural law); the irrevocable submission of Mexico pursuant to Section 15 hereof and Section 12 of the Fiscal Agency Agreement to the jurisdiction of any state or federal court in The Borough of Manhattan, The City of New York, in respect of any action by any Agent, or by any persons controlling such Agent, arising out of or based upon this Agreement or any action brought by any of the holders of Notes or the Fiscal Agent arising out of or based upon the Fiscal Agency Agreement, as the case may be, and the waiver by Mexico of any objection to the venue of any such proceeding in any such court are legal, valid and binding according to Article 566 of the Federal Code of Civil Procedures of Mexico; the waiver by Mexico pursuant to Section 15 hereof and Section 12 of the Fiscal Agency Agreement of any immunity to jurisdiction or sovereign immunity to which it may otherwise be entitled (excluding, in respect of actions brought against Mexico, attachment prior to judgment or attachment in aid of execution, as set forth in Article 4 of the Federal Code of Civil Procedures) with respect to any action, claim or proceeding arising out of or based upon this Agreement, any applicable Terms Agreement, the Fiscal Agency Agreement or the Notes, as the case may be, or to any right to which it may be entitled, based upon place of residence or domicile, is legal, valid and binding; the appointment of Mexico’s Consul General in The City of New York as agent to receive service of process on behalf of Mexico for the purposes described in Section 15 hereof and Section 12 of the Fiscal Agency Agreement is legal, valid and binding; service of process effected in the manner set forth in Section 15 hereof and Section 12 of the Fiscal Agency Agreement, assuming its validity under New York law, will be effective, to confer valid personal jurisdiction over Mexico;
(viii) in accordance with article 104, fracción III of the Constitution of Mexico, any action against Mexico arising out of or based on the Notes, or arising out of or based on this Agreement or any applicable Terms Agreement, may be instituted by the holders of the Notes or by the Agents, as the case may be, in any competent court in Mexico; any judgment obtained in a New York state or federal court sitting in The Borough of Manhattan, The City of New York, arising out of or in relation to the obligations of Mexico under this Agreement, any applicable Terms Agreement or the Notes, as the case may be, would be enforceable, subject to the limitations described in clause (vi) above, against Mexico in the courts of Mexico pursuant to Articles 569 and 571 of the Federal Code of Civil Procedures of Mexico and Article 1347A of the Commerce Code, which provide, inter alia, that any judgment rendered outside Mexico may be enforced by Mexican courts, provided that:
(A) such judgment is obtained in compliance with the legal requirements of the jurisdiction of the court rendering such judgment and in compliance with all legal requirements of this Agreement, any applicable Terms Agreement or the Notes, as the case may be;
(B) such judgment is strictly for the payment of a certain sum of money, provided that, under the Mexican Monetary Law, payments which should be made in Mexico in foreign currency, whether by agreement or upon a judgment of a Mexican court, may be discharged in Mexican currency at a rate of exchange for such currency prevailing at the time of payment;
(C) service of process was made personally on Mexico or on the appropriate process agent;
(D) such judgment does not contravene Mexican public policy or laws;
(E) the applicable procedure under the laws of Mexico with respect to the enforcement of foreign judgments (including the issuance of a letter rogatory by the competent authority of such jurisdiction requesting enforcement of such judgment and the certification of such judgment as authentic by the corresponding authorities of such jurisdiction in accordance with the laws thereof), is complied with;
(F) such judgment is final in the jurisdiction where obtained;
(G) the action in respect of which such judgment is rendered is not the subject matter of a lawsuit among the same parties pending before a Mexican court; and
(H) the courts of such jurisdiction recognize the principles of reciprocity in connection with the enforcement of foreign judgments in such jurisdiction;
(ix) to ensure the legality, validity, enforceability or admissibility in evidence of this Agreement, the Fiscal Agency Agreement (including the Authorization pursuant thereto), any applicable Terms Agreement or the Notes, it is not necessary that this Agreement, the Fiscal Agency Agreement (including the Authorization pursuant thereto), any applicable Terms Agreement or the Notes or any other document be filed, registered or recorded with, or executed or notarized before, any court or other authority in Mexico, or that any registration charge or stamp or similar tax be paid on or in respect of this Agreement, the Fiscal Agency Agreement, the Authorization, any applicable Terms Agreement or the Notes, or any other document, provided that, in the event any legal proceedings are brought in any court of Mexico, a Spanish translation of the documents required in such proceedings prepared by a court-appointed translator would, pursuant to Article 271 of the Federal Code of Civil Procedures of Mexico, have to be approved by such court after the defendant had been given an opportunity for a hearing as to the accuracy of such translation, and proceedings would thereafter be based upon such translation;
(x) pursuant to article 5, fraction II, second paragraph, of the General Law of Public Debt and article 196, fraction I, in relation with article 179 of the Income Tax Law, payments of principal or interest in respect of the Notes will be exempt from any withholding tax, provided that such Note is directly held by an individual or corporation who is not a resident of Mexico for tax purposes and that such Note is not held through a permanent establishment for tax purposes in Mexico to which such principal or interest payments are attributable, and the Note is not paid in Mexico; Mexico does not impose any stamp, registration or similar taxes payable by a foreign holder in connection with the purchase, ownership or disposition of the Notes; there is no stamp, income, registration, withholding or similar taxes imposed by Mexico or any political subdivision thereof by cause of the delivery, execution or enforcement of this Agreement, any applicable Terms Agreement, the Fiscal Agency Agreement, the Authorization or the Notes.
(xi) this Agreement, the Fiscal Agency Agreement, the Authorization, any applicable Terms Agreement and the Notes are in proper legal form under the laws of Mexico for the enforcement thereof against Mexico under the laws of Mexico, provided that, in the event any legal proceeding is brought in any court of Mexico, a Spanish translation of the documents required in such proceedings prepared by a court-appointed translator would, pursuant to Article 271 of the Federal Code of Civil Procedures of Mexico, have to be approved by such court after the defendant had been given an opportunity for a hearing as to the accuracy of such translation, and proceedings would thereafter be based upon such translation; and
(xii) the information contained in the Prospectus Supplement under the caption “Taxation—Mexican Taxation” fairly summarizes the provisions of Mexican tax law therein described. In rendering such opinion, such counsel may rely, without independent investigation on its part, as to all matters governed by United States Federal and New York law upon the opinion or opinions of referred to under subsection (c) below;
(c) Each Agent shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Company and the Guarantor, dated the date hereof, substantially as set forth below, with such additional qualifications and exceptions as shall be acceptable to the agents and their counsel:
(i) Each of the Company and the Guarantor is a corporation duly incorporated, validly existing and in good standing under the laws of the state of its incorporation and has the corporate power and authority to own its properties and to conduct its business as described in the Prospectus.
(ii) The Company and the Guarantor have the corporate power and authority to enter into this Agreement and the Terms Agreement (if applicable), and this Agreement and the Terms Agreement (if applicable) have been duly and validly authorized, executed and delivered by the Company and the Guarantor, respectively.
(iii) The form and general terms of the Notes have been duly and validly authorized and established in conformity with the provisions of the Indenture by all necessary corporate action by the Company, and when the particular terms of the Notes have been duly established in accordance with the provisions of the Indenture, the Procedures and the resolutions of the Board of Directors of the Company and such Notes have been duly executed, authenticated and delivered against payment therefor in accordance with the provisions of the Indenture, the Procedures and this Agreement, will constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and the terms of the Indenture, and the holders of the Notes will be entitled to the benefits of the Indenture; and the Indenture has been duly authorized, executed and delivered by each of the Company and Guarantor, has been qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against each of the Company and the Guarantor in accordance with its terms.
(iv) The Guarantees, in the forms certified to by an authorized officer of the Guarantor, have been duly and validly authorized by all necessary corporate action by the Guarantor and, upon due issuance, authentication and delivery of the related Notes and due endorsement of the Guarantees, the Guarantees will have been duly executed, issued and delivered and will constitute the legal, valid and binding obligations of the Guarantor enforceable against the Guarantor in accordance with their terms and the terms of the Indenture, and the holders of the Notes upon which the Guarantees are endorsed will be entitled to the benefits of the Indenture.
(v) The Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened and the Registration Statement and the Prospectus (other than (i) the financial statements and other financial and statistical information contained therein and (ii) the Statement of Eligibility on Form T-1 filed as an exhibit thereto, as to which such counsel need express no opinion), as of their respective effective or issue dates, as the case may be, appear on their face to be responsive as to form in all material respects with the applicable requirements of the Act and the Rules and Regulations and the Trust Indenture Act and the rules and regulations of the Commission thereunder.
(vi) No consent, approval, authorization or order of any United States federal or New York, California or (with respect to matters arising under the Delaware General Corporation Law) Delaware court or governmental agency or body is required for the consummation of the transactions contemplated by this Agreement or the Indenture, except such as have been obtained under the Act and such as may be required under the securities and blue sky laws, rules or regulations of any jurisdiction in connection with the purchase and distribution of the Notes and related Guarantees by the agents and such other approvals as have been obtained.
(vii) Neither the issue and sale of the Notes (in the forms certified to by an authorized officer of the Company), the compliance by the Company and the Guarantor with all the provisions of this Agreement, the Indenture, the Notes or the Guarantees (in the form certified to by an authorized officer of the Guarantor), the consummation of the transactions herein or therein contemplated nor the fulfillment of the terms hereof or thereof will conflict with, result in a breach of, or constitute a default under the charter or bylaws of the Company or the Guarantor or the terms of any indenture or other agreement or instrument filed with the Commission and to which the Company or the Guarantor or any of the Guarantor's subsidiaries is a party or bound, or any order, decree, judgment or regulation (other than any federal or state securities or blue sky laws, rules or regulations) known to such counsel to be applicable to the Company or the Guarantor or any of the Guarantor's subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Guarantor or any of the Guarantor's subsidiaries.
(viii) To the best knowledge of such counsel, no holders of securities of the Company or the Guarantor have rights to the registration of such securities under the Registration Statement.
(ix) Such counsel confirms (i) that the statements in the Prospectus under the caption "Federal Income Tax Consequences", insofar as such statements constitute a summary of the legal matters referred to therein, fairly present the information disclosed therein in all material respects, (ii) the conformity in all material respects of the Notes (in the forms certified to by an authorized officer of the Company) to the statements relating thereto in the Prospectus, and (iii) the conformity in all material respects of the Indenture and the Guarantees to the statements relating thereto in the Prospectus under the captions "Description of Notes" and "Description of Debt Securities of Countrywide Home Loans and Related Guarantees of Countrywide Credit Industries." Such counsel shall also state that, in the course of their engagement to represent or advise the Company and the Guarantor professionally, they have not become aware of any pending legal proceeding before any court or administrative agency or authority or any arbitration tribunal, nor have they devoted substantive attention in the form of legal representation as to any current overtly threatened litigation against or directly affecting the Company or its subsidiaries or the Guarantor or its subsidiaries, in each case that is required to be described in the Registration Statement or the Prospectus and is not so described. In making the foregoing statement, they shall endeavor, to the extent they believe necessary, to determine from lawyers currently in their firm who have performed substantive legal services for the Company or the Guarantor, whether such services involved substantive attention in the form of legal representation concerning pending legal proceedings or overtly threatened litigation of the nature referred to above. Beyond that, they need not make any review, search or investigation of public files or records or files or records of the Company or the Guarantor, or of their respective transactions, or any other investigation or inquiry with respect to the foregoing statement. Such counsel shall also state that in the course of the preparation by the Company, the Guarantor and their counsel of the Registration Statement and Prospectus (other than the Incorporated Documents (as defined below)), such counsel attended conferences with certain of the officers of, and the independent public accountants for, the Company and the Guarantor, at which the Registration Statement and Prospectus were discussed. Given the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process, such counsel need not pass upon and need not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus including the Incorporated Documents, except as specifically described in the opinion set forth in paragraph (ix) above. Subject to the foregoing and on the basis of the information such counsel gained in the performance of the services referred to above, including information obtained from officers and other representatives of the Company and Guarantor, such counsel shall state that no facts have come to such counsel's attention that have caused it to believe that the Registration Statement, at the time it became effective, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, at its date or at the date hereof, included or includes, as the case may be, any untrue statement of material fact or omitted or omits, as the case may be, 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 such counsel need not express a view or belief with respect to (i) the financial statements, the related notes and schedules thereto or other financial and statistical data included or incorporated by reference in the Registration Statement and Prospectus or (ii) any part of the Registration Statement which shall constitute a Statement of Eligibility on Form T-1 under the Trust Indenture Act. References to the Prospectus in this Section 5(b) include any amendments or supplements thereto at the date hereof. 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 California, the State of Delaware (but only with respect to the Delaware General Corporation Law) or the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the agents, (B) as the matters involving the application of laws of the State of New York, to the extent specified in such opinion, upon the opinion of ▇▇▇▇▇ & Wood LLP being delivered LLP, United States counsel to the agents as of the date thereof and (C) as to matters of fact, to the extent they deem proper, on certificates and oral or written statements and other information of or from public officials and officers and representatives of the Company, the Guarantor, their respective subsidiaries and others. In rendering the opinions set forth in paragraphs (iii) and (iv)Mexico, such counsel may state that such opinions are subject to the following: (i) bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent conveyance, moratorium or other laws now or hereafter in effect affecting creditors' rights generally; and (ii) general principles of equity (including, without limitation, standards of materiality, good faith, fair dealing and reasonableness) whether such principles are considered in a proceeding in equity or at law. In rendering the opinions set forth above, such counsel need not express an opinion as to the legality, validity, binding effect or enforceability of any provision of the Notes, the Indenture or the Guarantees providing for payments thereunder in a currency other than currency of the United States of America to the extent that a court of competent jurisdiction will under applicable law convert any judgment rendered in such other currency into currency of the United States of America or to the extent that payment in a currency other than currency of the United States of America is contrary to applicable law. In rendering the opinions set forth above, such counsel may state that it has assumed, with the permission of the agents, that the amount of Notes to be issued from time to time will not violate any provision in any such agreement referred to in paragraph (vii) which imposes limits on the amount of debt of the Company, the Guarantor or any of the Guarantor's subsidiaries which may be outstanding at any one time (whether directly or indirectly, through satisfaction of financial ratios or otherwise).
(c) The Company and the Guarantor shall have furnished to the agents the opinion or opinions of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the Company and the Guarantoropinions, dated the date hereof, substantially as set forth below, with such additional qualifications Execution Date in form and exceptions as shall be acceptable substance reasonably satisfactory to the agents and their counsel:
(i) Each Subsidiary, if any, is a corporation, duly incorporated, validly existing and in good standing under the laws of the state of its incorporation, with the corporate power and authority to own its properties and to conduct its business as described in the Prospectus.
(ii) Each of the Company, the Guarantor and the Subsidiaries 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 other than jurisdictions in which the failure to so qualify, when considered in the aggregate and not individually, would not have a material adverse effect on the Company or the Guarantor and its Subsidiaries considered as one enterprise.
(iii) All the outstanding shares of capital stock of the Company and 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 Company and the Subsidiaries are owned by the Guarantor either directly or through wholly owned subsidiaries free and clear of any perfected security interest andAgents, to the knowledge of such counsel, after due inquiry, any other security interests, claims, liens or encumbrances.
(iv) The outstanding shares of common stock of the Guarantor have been duly and validly authorized and issued and are fully paid and nonassessable.
(v) Neither the issue and sale of the Notes, the compliance by the Company and the Guarantor with all the provisions of this Agreement, the Indenture, the Notes or the Guarantees, 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 of, or constitute a default under the charter or by-laws of the Company or the Guarantor or, to the knowledge of such counsel, the terms of any indenture or other agreement or instrument to which the Company or the Guarantor or any of the Guarantor's subsidiaries is a party or bound, or any order, decree, law, judgment, rule or regulation known to such counsel to be applicable to the Company or the Guarantor or any of the Guarantor's subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitratt
Appears in 1 contract
Conditions to the Obligations of the Agents. The obligations of any agent each Agent to solicit offers to purchase the Notes shall be subject to the accuracy of the representations and warranties on the part of Mexico contained herein, on the Company and the Guarantor contained herein as of the date hereofEffective Date, as of the date of the effectiveness of any amendment to the Registration Statement (including the filing of any document incorporated by reference therein), as of the date of when any supplement to the Prospectus is filed with the Commission and as of each Settlement Closing Date, to the accuracy in all material respects of the statements of the Company and the Guarantor Mexico made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Guarantor Mexico of their respective its obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, Statement shall have been issued, issued and no proceedings for that purpose shall have been instituted or threatened.;
(b) The Company and the Guarantor Mexico shall have furnished to each Agent (i) a copy of the agents the opinion or opinions of ▇▇▇▇▇▇MTN Authorization Certificate and (ii) an opinion, ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel in form and substance reasonably satisfactory to the Company and Agents, of the GuarantorFederal Fiscal Attorney of the Federation or the Deputy Federal Fiscal Attorney of the Federation for Financial Affairs of Mexico, dated the date hereofExecution Date (or, substantially in the case of any Terms Agreement, of either the Federal Fiscal Attorney of the Federation, the Deputy Federal Fiscal Attorney of the Federation for Financial Affairs of Mexico or the Deputy Director General of Legal Procedures of Credit of the Ministry of Finance and Public Credit dated as set forth below, with such additional qualifications and exceptions as shall be acceptable of the Closing Date) to the agents and their counseleffect that:
(i) Each pursuant to Mexico’s Constitution and other Mexican laws and regulations, and in particular to Article 4, fraction I, and Article 5, fractions I, II and III of the Company and the Guarantor is a corporation duly incorporatedGeneral Law of Public Debt, validly existing and in good standing under the laws of the state of its incorporation and Mexico has the corporate full power and authority to own its properties execute and deliver the MTN Authorization Certificate and any applicable Authorization, and to conduct its business as described in the Prospectus.
(ii) The Company perform and the Guarantor have the corporate power and authority to enter into this Agreement and the Terms Agreement (if applicable), and this Agreement and the Terms Agreement (if applicable) have been duly and validly authorized, executed and delivered by the Company and the Guarantor, respectively.
(iii) The form and general terms of the Notes have been duly and validly authorized and established in conformity comply with the terms and provisions of the Indenture by all necessary corporate action by the Companythis Agreement, and when the particular terms of the Notes have been duly established in accordance with the provisions of the Indenture, any applicable Authorization and, if the Procedures and opinion is being given pursuant to Section 6(b) hereof on account of Mexico having entered into a Terms Agreement, the resolutions of the Board of Directors of the Company and such Notes have been duly executedapplicable Terms Agreement; this Agreement, authenticated and delivered against payment therefor in accordance with the provisions of the Indenture, the Procedures any applicable Authorization and this Agreement, will constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and the terms of the Indenture, and the holders of the Notes will be entitled to the benefits of the Indenture; and the Indenture has any applicable Terms Agreement have been duly authorized, executed and delivered by Mexico and, assuming that each of this Agreement, any applicable Terms Agreement, the Company Indenture and Guarantor, has been qualified under the Trust Indenture Act, and any applicable Authorization constitutes a legal, valid and legally binding obligation enforceable against agreement under New York law, each of this Agreement, any applicable Terms Agreement, the Company Indenture and the Guarantor any applicable Authorization constitutes a valid and legally binding agreement, enforceable in accordance with its respective terms., subject to laws of general applicability relating to or affecting creditors’ rights;
(ivii) The Guaranteespursuant to Mexico’s Constitution and other Mexican laws and regulations, and in the forms certified particular to by an authorized officer Article 5 of the GuarantorGeneral Law of Public Debt, Mexico has full power and authority to enter into, perform and comply with the terms and provisions of the Notes; the Notes have been duly and validly authorized by all necessary corporate action by in accordance with the Guarantor and, upon due issuance, authentication and delivery laws of the related Notes and due endorsement of the Guarantees, the Guarantees will have been duly Mexico; when executed, issued and delivered in accordance with the laws of Mexico, authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the purchasers thereof in accordance with the terms hereof and the terms of any applicable Terms Agreement, the Notes will constitute the legalvalid, valid legally binding, direct, general and binding obligations unconditional Public External Indebtedness (as defined herein) of the Guarantor Mexico enforceable against the Guarantor in accordance with their terms and the terms of the Indenture, and the holders of the Notes upon which the Guarantees are endorsed will be entitled to the benefits of the Indenture.Indenture and the applicable Authorization; such obligations shall not in any way be legally affected or impaired as a result of any use to be made by Mexico of the proceeds received by it from the sale of the Notes; and the Notes rank and will rank without any preference among themselves and equally with all other unsubordinated Public External Indebtedness of Mexico, it being understood that this provision will not be construed so as to require Mexico to make payments under the Notes ratably with payments being made under any other Public External Indebtedness;
(viii) The Registration Statement has become effective under neither the Act; any required filing execution and delivery of the ProspectusIndenture, the MTN Authorization Certificate, any applicable Authorization, the Notes, this Agreement or any applicable Terms Agreement, nor the consummation of the transactions therein or herein contemplated nor compliance with the terms and provisions thereof or hereof, including performance of each of the obligations contained therein or herein (A) will conflict with, violate or result in a breach of the Political Constitution of Mexico or any law, rule or regulation of or applicable to Mexico (including without limitation the Federal Revenue Law for the applicable Fiscal Year, in particular, Article 2, or any other reference to the authorization given to the Executive Branch, through the Ministry of Finance and Public Credit, to contract loans and issue securities in foreign markets to finance the Federal Budget for the applicable Fiscal Year as well as for the purpose of exchanging or refinancing Mexico’s External Indebtedness, and any supplements theretoall other provisions included in such law (or, pursuant to Rule 424(b) has been made in the manner and within case of any applicable Terms Agreement, the time period required by Rule 424(b); to Federal Revenue Law for the knowledge of such counsel, no stop order suspending the effectiveness year of the Registration Statement has been issuedClosing Date)), no proceedings for that purpose have been instituted (B) will conflict with or threatened and result in a breach of any of the terms, conditions or provisions of any treaty, convention, material agreement or material instrument to which Mexico is a party or by which Mexico is bound or constitute a default thereunder or (C) will result in the creation or imposition of any mortgage, lien, charge or encumbrance of any nature whatsoever upon any of the revenues or assets of Mexico under any such agreement or instrument;
(iv) the Registration Statement and the Prospectus (other than (i) and their filing with the financial statements Commission have been duly authorized by Mexico, and other financial and statistical information contained therein and (ii) the Statement of Eligibility on Form T-1 filed as an exhibit theretoRegistration Statement, as amended, has been duly executed by and on behalf of Mexico; the information in the Registration Statement and the Prospectus stated on the authority of public officials of Mexico has been stated in their official capacities thereunto duly authorized by Mexico; and all statements with respect to which such counsel need express no opinion), as or involving matters of their respective effective or issue dates, as Mexican law set forth in the case may be, appear on their face to be responsive as to form Registration Statement and the Prospectus are true and correct in all material respects with respects;
(v) all authorizations, approvals and consents (which shall be specified in such opinion and certified copies of which shall be furnished to the applicable requirements of United States counsel to the Act Agents and the Rules Mexican counsel to the Agents) from and Regulations and the Trust Indenture Act and the rules and regulations of the Commission thereunder.
(vi) No consent, approval, authorization or order of any United States federal or New York, California or (registrations with respect to matters arising under the Delaware General Corporation Law) Delaware court or all governmental agency or body is required authorities in Mexico that are necessary for the consummation of the transactions contemplated by this Agreement or the Indenture, except such as have been obtained under the Act execution and such as may be required under the securities and blue sky laws, rules or regulations of any jurisdiction in connection with the purchase and distribution of the Notes and related Guarantees by the agents and such other approvals as have been obtained.
(vii) Neither the issue and sale of the Notes (in the forms certified to by an authorized officer of the Company), the compliance by the Company and the Guarantor with all the provisions delivery of this Agreement, the Indenture, the Notes or MTN Authorization Certificate, any applicable Authorization and any applicable Terms Agreement, and for the Guarantees (in the form certified to by an authorized officer of the Guarantor)execution, the consummation of the transactions herein or therein contemplated nor the fulfillment of the terms hereof or thereof will conflict withissuance, result in a breach of, or constitute a default under the charter or bylaws of the Company or the Guarantor or the terms of any indenture or other agreement or instrument filed with the Commission sale and to which the Company or the Guarantor or any of the Guarantor's subsidiaries is a party or bound, or any order, decree, judgment or regulation (other than any federal or state securities or blue sky laws, rules or regulations) known to such counsel to be applicable to the Company or the Guarantor or any of the Guarantor's subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or the Guarantor or any of the Guarantor's subsidiaries.
(viii) To the best knowledge of such counsel, no holders of securities of the Company or the Guarantor have rights to the registration of such securities under the Registration Statement.
(ix) Such counsel confirms (i) that the statements in the Prospectus under the caption "Federal Income Tax Consequences", insofar as such statements constitute a summary of the legal matters referred to therein, fairly present the information disclosed therein in all material respects, (ii) the conformity in all material respects delivery of the Notes (in hereunder and the forms certified to performance by an authorized officer Mexico of the Company) to covenants contained in this Agreement, the statements relating thereto in the ProspectusIndenture, and (iii) the conformity in all material respects of the Indenture any applicable Authorization, any applicable Terms Agreement and the Guarantees to Notes have been obtained and are in full force and effect; once the statements relating thereto in the Prospectus under the captions "Description of Notes" and "Description of Debt Securities of Countrywide Home Loans and Related Guarantees of Countrywide Credit Industries." Such counsel shall also state thatNotes are issued, in the course of their engagement to represent or advise the Company and the Guarantor professionally, they have not become aware of any pending legal proceeding before any court or administrative agency or authority or any arbitration tribunal, nor have they devoted substantive attention in the form of legal representation as to any current overtly threatened litigation against or directly affecting the Company or its subsidiaries or the Guarantor or its subsidiaries, in each case that a notice is required to be described in the Registration Statement or the Prospectus and is not so described. In making the foregoing statement, they shall endeavor, delivered by Mexico to the extent they believe necessaryNational Banking and Securities Commission; provided, however, that the failure to determine from lawyers currently give such notice shall not affect Mexico’s obligations under the Notes; all necessary action by Mexico in their firm who have performed substantive legal services for connection with the Company or Notes has been duly taken, including the Guarantor, whether such services involved substantive attention in the form of legal representation concerning pending legal proceedings or overtly threatened litigation issuance of the nature referred to above. Beyond that, they need not make any review, search or investigation of public files or records or files or records Decrees of the Company or President of Mexico to the Guarantor, or Ministry of their respective transactions, or any other investigation or inquiry Finance and Public Credit with respect to the foregoing statement. Such counsel shall also state issuance of the Notes, dated October 23, 2012;
(vi) under the laws of Mexico, specifically in accordance with Articles 3 and 4 of the Federal Code of Civil Procedures of Mexico, neither Mexico nor any of its properties has, with respect to any action, claim or proceeding arising out of or based upon this Agreement, the Indenture, any applicable Authorization or any applicable Terms Agreement regarding the execution, issuance, sale and delivery of the Notes, any immunity from jurisdiction of any court or from set-off or any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise), except that under Article 4 of the Federal Code of Civil Procedures of Mexico, attachment prior to judgment or attachment in aid of execution may not be ordered by Mexican courts against property of Mexico;
(vii) the choice of New York law in this Agreement, the Indenture (including the Authorizations pursuant thereto), any applicable Terms Agreement and the Notes is a valid choice of law and, accordingly, would be recognized and applied by the courts of Mexico if this Agreement, the Indenture, any applicable Authorization, any applicable Terms Agreement or the Notes or any claim made thereunder is brought before any such court (provided that in any proceedings in Mexico for the course enforcement of this Agreement, the Indenture, any applicable Authorization, any applicable Terms Agreement or the Notes, a Mexican court would apply Mexican procedural law); the irrevocable submission of Mexico pursuant to Section 15 hereof and Section 9.7 of the preparation Indenture to the jurisdiction of any state or federal court sitting in The Borough of Manhattan, The City of New York, in respect of any action by the Companyany Agent, the Guarantor and their counsel or by any persons controlling such Agent, arising out of or based upon this Agreement or any action brought by any of the Registration Statement and Prospectus (other than holders of Notes or the Incorporated Documents (as defined below)), such counsel attended conferences with certain Trustee arising out of the officers of, and the independent public accountants for, the Company and the Guarantor, at which the Registration Statement and Prospectus were discussed. Given the limitations inherent in the independent verification of factual matters and the character of determinations involved in the registration process, such counsel need not pass upon and need not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus including the Incorporated Documents, except as specifically described in the opinion set forth in paragraph (ix) above. Subject to the foregoing and based on the basis of Indenture or the information such counsel gained in the performance of the services referred to above, including information obtained from officers and other representatives of the Company and Guarantor, such counsel shall state that no facts have come to such counsel's attention that have caused it to believe that the Registration Statement, at the time it became effective, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, at its date or at the date hereof, included or includesNotes, as the case may be, and the waiver by Mexico of any untrue statement objection to the venue of material fact any such proceeding in any such court are legal, valid and binding according to Article 566 of the Federal Code of Civil Procedures of Mexico; the waiver by Mexico pursuant to Section 15 hereof and Section 9.7 of the Indenture of any immunity to jurisdiction or omitted sovereign immunity to which it may otherwise be entitled (excluding, in respect of actions brought against Mexico, attachment prior to judgment or omitsattachment in aid of execution, as set forth in Article 4 of the Federal Code of Civil Procedures) with respect to any action, claim or proceeding arising out of or based upon this Agreement, any applicable Terms Agreement, the Indenture or the Notes, as the case may be, or to state a material fact necessary any right to make which it may be entitled, based upon place of residence or domicile, is legal, valid and binding; the statements thereinappointment of Mexico’s Consul General in The City of New York as agent to receive service of process on behalf of Mexico for the purposes described in Section 15 hereof and Section 9.7 of the Indenture is legal, valid and binding; service of process effected in the manner set forth in Section 15 hereof and Section 9.7 of the Indenture, assuming its validity under New York law, will be effective, to confer valid personal jurisdiction over Mexico;
(viii) in accordance with article 104, fracción III of the Constitution of Mexico, any action against Mexico arising out of or based on the Notes, or arising out of or based on this Agreement or any applicable Terms Agreement, may be instituted by the holders of the Notes or by the Agents, as the case may be, in any competent court in Mexico; any judgment obtained in a New York state or federal court sitting in The Borough of Manhattan, The City of New York, arising out of or in relation to the light obligations of Mexico under this Agreement, any applicable Terms Agreement or the Notes, as the case may be, would be enforceable, subject to the limitations described in clause (vi) above, against Mexico in the courts of Mexico pursuant to Articles 569 and 571 of the circumstances under which they were made, not misleading, except that such counsel need not express a view or belief with respect to (i) the financial statements, the related notes Federal Code of Civil Procedures of Mexico and schedules thereto or other financial and statistical data included or incorporated by reference in the Registration Statement and Prospectus or (ii) any part Article 1347A of the Registration Statement Commerce Code, which shall constitute a Statement of Eligibility on Form T-1 under the Trust Indenture Act. References to the Prospectus in this Section 5(b) include provide, inter alia, that any amendments or supplements thereto at the date hereof. In rendering such opinionjudgment rendered outside Mexico may be enforced by Mexican courts, such counsel may rely provided that:
(A) such judgment is obtained in compliance with the legal requirements of the jurisdiction of the court rendering such judgment and in compliance with all legal requirements of this Agreement, any applicable Terms Agreement or the Notes, as to matters involving the application case may be;
(B) such judgment is strictly for the payment of a certain sum of money, provided that, under the Mexican Monetary Law, payments which should be made in Mexico in foreign currency, whether by agreement or upon a judgment of a Mexican court, may be discharged in Mexican currency at a rate of exchange for such currency prevailing at the time of payment;
(C) service of process was made personally on Mexico or on the appropriate process agent;
(D) such judgment does not contravene Mexican public policy or laws;
(E) the applicable procedure under the laws of any jurisdiction other than the State of California, the State of Delaware (but only Mexico with respect to the Delaware General Corporation Lawenforcement of foreign judgments (including the issuance of a letter rogatory by the competent authority of such jurisdiction requesting enforcement of such judgment and the certification of such judgment as authentic by the corresponding authorities of such jurisdiction in accordance with the laws thereof), is complied with;
(F) or such judgment is final in the United States, to jurisdiction where obtained;
(G) the extent they deem proper and specified action in respect of which such judgment is rendered is not the subject matter of a lawsuit among the same parties pending before a Mexican court; and
(H) the courts of such jurisdiction recognize the principles of reciprocity in connection with the enforcement of foreign judgments in such opinion, upon the opinion of other counsel of good standing whom they believe jurisdiction;
(ix) to be reliable and who are satisfactory to counsel for the agents, (B) as the matters involving the application of laws of the State of New York, to the extent specified in such opinion, upon the opinion of ▇▇▇▇▇ & Wood LLP being delivered to the agents as of the date thereof and (C) as to matters of fact, to the extent they deem proper, on certificates and oral or written statements and other information of or from public officials and officers and representatives of the Company, the Guarantor, their respective subsidiaries and others. In rendering the opinions set forth in paragraphs (iii) and (iv), such counsel may state that such opinions are subject to the following: (i) bankruptcy, insolvency, reorganization, fraudulent transfer, fraudulent conveyance, moratorium or other laws now or hereafter in effect affecting creditors' rights generally; and (ii) general principles of equity (including, without limitation, standards of materiality, good faith, fair dealing and reasonableness) whether such principles are considered in a proceeding in equity or at law. In rendering the opinions set forth above, such counsel need not express an opinion as to ensure the legality, validity, binding effect enforceability or enforceability admissibility in evidence of this Agreement, the Indenture (including the Authorizations pursuant thereto), any provision of applicable Terms Agreement or the Notes, it is not necessary that this Agreement, the Indenture (including the Authorizations pursuant thereto), any applicable Terms Agreement or the Guarantees providing for payments thereunder in a currency other than currency of the United States of America to the extent that a court of competent jurisdiction will under applicable law convert any judgment rendered in such other currency into currency of the United States of America or to the extent that payment in a currency other than currency of the United States of America is contrary to applicable law. In rendering the opinions set forth above, such counsel may state that it has assumed, with the permission of the agents, that the amount of Notes to be issued from time to time will not violate any provision in any such agreement referred to in paragraph (vii) which imposes limits on the amount of debt of the Company, the Guarantor or any of the Guarantor's subsidiaries which may other document be outstanding at any one time (whether directly filed, registered or indirectlyrecorded with, through satisfaction of financial ratios or otherwise).
(c) The Company and the Guarantor shall have furnished to the agents the opinion executed or opinions of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of the Company and the Guarantor, dated the date hereof, substantially as set forth below, with such additional qualifications and exceptions as shall be acceptable to the agents and their counsel:
(i) Each Subsidiary, if any, is a corporation, duly incorporated, validly existing and in good standing under the laws of the state of its incorporation, with the corporate power and authority to own its properties and to conduct its business as described in the Prospectus.
(ii) Each of the Company, the Guarantor and the Subsidiaries 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 other than jurisdictions in which the failure to so qualify, when considered in the aggregate and not individually, would not have a material adverse effect on the Company or the Guarantor and its Subsidiaries considered as one enterprise.
(iii) All the outstanding shares of capital stock of the Company and 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 Company and the Subsidiaries are owned by the Guarantor either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquirynotarized before, any court or other security interestsauthority in Mexico, claims, liens or encumbrances.
(iv) The outstanding shares of common stock of the Guarantor have been duly and validly authorized and issued and are fully that any registration charge or stamp or similar tax be paid and nonassessable.
(v) Neither the issue and sale of the Notes, the compliance by the Company and the Guarantor with all the provisions on or in respect of this Agreement, the Indenture, the Notes any applicable Authorization, any applicable Terms Agreement or the Guarantees, 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 of, or constitute a default under the charter or by-laws of the Company or the Guarantor or, to the knowledge of such counsel, the terms of any indenture or other agreement or instrument to which the Company or the Guarantor or any of the Guarantor's subsidiaries is a party or boundNotes, or any orderother document, decreeprovided that, lawin the event any legal proceedings are brought in any court of Mexico, judgmenta Spanish translation of the documents required in such proceedings prepared by a court-appointed translator would, rule or regulation known pursuant to such counsel Article 271 of the Federal Code of Civil Procedures of Mexico, have to be applicable approved by such court after the defendant had been given an opportunity for a hearing as to the Company accuracy of such translation, and proceedings would thereafter be based upon such translation;
(x) pursuant to article 5, fraction II, second paragraph, of the General Law of Public Debt and article 166, paragraph a, of the Income Tax Law, payments of principal, premium or interest in respect of the Notes will be exempt from any withholding tax, provided that such Note is directly held by an individual or corporation who is not a resident of Mexico for tax purposes and that such Note is not held through a permanent establishment for tax purposes in Mexico to which such principal, premium or interest payments are attributable, and the Note is not paid in Mexico; Mexico does not impose any stamp, registration or similar taxes payable by a foreign holder in connection with the purchase, ownership or disposition of the Notes; there is no stamp, income, registration, withholding or similar taxes imposed by Mexico or any political subdivision thereof by cause of the delivery, execution or enforcement of this Agreement, any applicable Terms Agreement, the Indenture, any applicable Authorization or the Guarantor or Notes.
(xi) this Agreement, the Indenture, any applicable Authorization, any applicable Terms Agreement and the Notes are in proper legal form under the laws of Mexico for the enforcement thereof against Mexico under the laws of Mexico, provided that, in the event any legal proceeding is brought in any court of Mexico, a Spanish translation of the Guarantor's subsidiaries documents required in such proceedings prepared by a court-appointed translator would, pursuant to Article 271 of any courtthe Federal Code of Civil Procedures of Mexico, regulatory bodyhave to be approved by such court after the defendant had been given an opportunity for a hearing as to the accuracy of such translation, administrative agency, governmental body or arbitratand proceedings would thereafter be based upon such translation; and
(xii) the information contained in the Prospectus Supplement under the caption “Taxation—Mexican Taxation” fairly summarizes the provisions of Mexican tax law therein described. In render
Appears in 1 contract