Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction. (b) King & Spalding LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that: (i) This Agreement has been duly authorized, executed and delivered by the Company; (ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act; (iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; (iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and (v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects. (c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus; (ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable; (iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction; (iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims; (v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others; (vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties; (vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters; (viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended; (ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and (x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that: (1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; (2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; (3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1. (d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively. (e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)). (f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus. (g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement. (h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock. (i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus. (j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.
Appears in 4 contracts
Sources: Underwriting Agreement (Suntrust Banks Inc), Underwriting Agreement (Suntrust Banks Inc), Underwriting Agreement (Suntrust Banks Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Republic made in any certificates pursuant to the provisions hereof, to the performance by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereofof this Agreement; the and any final term sheet contemplated by Section 5(A)(a4(a) hereof, and any other material required to be filed by the Company Republic pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.;
(b) King & Spalding LLP, counsel for the Company, shall have furnished to the Underwriters an opinion The Head or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement Acting Head of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery Legal Affairs Group of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Dirección General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.de Crédito Público y
Appears in 3 contracts
Sources: Underwriting Agreement (Republic of Colombia), Underwriting Agreement (Republic of Colombia), Underwriting Agreement (Republic of Colombia)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Applicable Execution Time, as of the date hereof of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed with in the Commission pursuant to Rule 424(b) under the Act manner and within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement Statement, or any part thereof notice that would prevent its use, as amended from time to time, shall have been issued and no proceeding proceedings for that purpose shall have been initiated instituted or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfactionthreatened.
(b) King & Spalding LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters Representatives:
(i) the opinion of the General Counsel, an opinionAssociate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the Company, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, substantially to the effect that:
(iA) The the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amendedDelaware, with full corporate power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization Disclosure Package and Final Prospectus as set forth in the Prospectusamended or supplemented, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require except where such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate not have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(viB) The execution insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and delivery the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, the issuance will be legal, valid and sale binding obligations of the NotesCompany enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreementherein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Notes by the Underwriters;Securities and such other approvals (specified in such opinion) as have been obtained; and
(viiiG) The Company is not and, after giving effect to none of the offering issue and sale of the Notes Securities, the consummation of any other of the transactions herein contemplated or the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under, the charter or by-laws of the Company or, to such counsel’s knowledge, the terms of any Material Agreements, or any material decree or regulation known to such counsel to be applicable to the Company of any U.S. federal or California or Delaware court, governmental authority or agency having jurisdiction over the Company. “Material Agreements” means all agreements filed as exhibits to the Company’s most recent Annual Report on Form 10-K pursuant to clause (10) of paragraph (b) of Item 601 of Regulation S-K (but only such agreements that continue to be in effect). Such opinion shall also include a statement that such counsel has participated in conferences with officers and other representatives of the Company, counsel for the Company, the independent accountants of the Company and the application of Underwriters at which the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Disclosure Package and the Final Prospectus and related matters were discussed and, although such counsel is not passing upon, and does not assume any further amendments responsibility for, the accuracy, completeness or fairness of the Registration Statement, the Disclosure Package or the Final Prospectus or the statements contained therein and supplements theretohas made no independent check or verification thereof, as applicableon the basis of the foregoing, made by no facts have come to such counsel’s attention that has caused such counsel to believe that (i) the Company prior to Registration Statement and the Time of Delivery Final Prospectus (other than except the financial statements and related the notes thereto and financial statement schedules and other information of an accounting, statistical or financial information contained therein nature included therein, and any Form T-1 Statements the Statement of Eligibility and Qualification filed (Form T-1) included as exhibits an exhibit to the Registration Statement, as to which such counsel need express no opinionview) comply as to form were not appropriately responsive in all material respects with the requirements of the Act and the rules and regulations thereunder; and
, (xii) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective datethe most recent Effective Date, contained 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;
, or that the Final Prospectus as of its date and on the Closing Date includes any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (2in each case except for the financial statements and the notes thereto and the financial statement schedules and other information of an accounting, statistical or financial nature included therein, and the Statement of Eligibility (Form T-1) included as an exhibit to the Pricing Registration Statement, as to which such counsel need express no view) and (iii) that the Disclosure Package, considered together, as of the Applicable Time, contained an any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances circumstance under which they were made, not misleading;
misleading (3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related the notes thereto and financial statement schedules and other information of an accounting, statistical or financial information contained nature included therein, and with respect as to clause (i) above, which such counsel need not express a belief with respect no view). Any of the statements described above may be omitted from the opinion of such counsel; provided, however, that in such event the Company shall also have furnished to any Form T-1.
(d) The Underwriters shall have received from the Representatives the corresponding opinion or statement of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the UnderwritersCompany, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (isubsection 5(b)(ii) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectusbelow.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.
Appears in 3 contracts
Sources: Underwriting Agreement (Hewlett Packard Co), Underwriting Agreement (Hewlett Packard Co), Underwriting Agreement (Hewlett Packard Co)
Conditions to the Obligations of the Underwriters. The respective obligations of the several Underwriters to purchase the Notes under this Agreement shall be subject to the accuracy of the representations and warranties on the part of the Company contained set forth herein as of the Applicable Time, date of the date hereof and the First Closing Date, and if applicable, as of the Second Closing Date, as the case may be, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereofCompany's directors and officers, to the performance by the Company of its obligations hereunder hereunder, and to the following additional conditions, except to the extent expressly waived in writing by the Representatives:
(a) The Registration Statement and all post-effective amendments thereto shall have been declared effective by the Commission not later than 5:30 p.m. eastern time, on the date of this Agreement, or such later time as shall have been consented to by the Representatives, but in any event not later than 5:30 p.m., eastern time, on the third full business day following the date hereof; if the Company omitted information from the Registration Statement at the time it became effective in reliance on Rule 430A under the Act, the Prospectus shall have been filed with the Commission pursuant to in compliance with Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) 430A under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof amendment or supplement thereto shall have been issued and issued; no proceeding for that purpose the issuance of such an order shall have been initiated or threatened by shall be pending or, to the Commission and no notice of objection knowledge of the Commission to Company or the use of the Registration Statement Representatives, threatened or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened contemplated by the Commission; and all requests any request of the Commission for additional information on (to be included in the part of Registration Statement or the Commission Prospectus or otherwise) shall have been disclosed to the Representatives and complied with to your reasonable the Representatives' satisfaction.
(b) King The Shares shall have been qualified or registered for sale, or subject to an available exemption from such qualification or registration, under the Blue Sky Laws of such jurisdictions as shall have been reasonably specified by the Representatives and the offering shall have been cleared by the NASD.
(c) Since the dates as of which information is given in the Registration Statement:
(i) There shall not have been any adverse change, or any development involving a prospective material adverse change, in the ability of the Company or any Subsidiary to conduct their respective businesses (whether by reason of any court, legislative, other governmental action, order, decree, or otherwise), or in the general affairs, condition (financial and otherwise) business, prospects, properties, management, financial position or earnings, results of operations, or net worth of the Company or any Subsidiary, whether or not arising from transactions in the ordinary course of business; and
(ii) Neither the Company nor any Subsidiary shall have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident, or other calamity (whether or not insured) or from any court or governmental action, order, or decree, the effect of which on the Company or any Subsidiary, in any such case described in clause (c)(i) or (ii) above, is in the reasonable opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated in the Registration Statement and the Prospectus.
(d) There shall have been furnished to the Representatives, as the representatives of the Underwriters, on each Closing Date, except as otherwise expressly provided below:
(i) An opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Weary & Spalding LLP▇▇▇▇▇▇▇▇ ▇.▇. Kansas City, Missouri, counsel for the Company, shall have furnished in form reasonably satisfactory to the Representatives and counsel for the Underwriters, addressed to the Representatives as representatives of the Underwriters an opinion and dated as of the First Closing Date or opinions, dated the Second Closing Date, as the case may be, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c1) The Company shall and each Subsidiary have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is are validly existing as a corporation corporations in good standing under the laws of the State jurisdiction of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amendedorganization, with full corporate power and authority to own its own, lease, and operate their respective properties and conduct their respective businesses as described in the Registration Statement; the Company and each Subsidiary are duly qualified to do business as foreign corporations under the corporation laws of, and are in good standing as such in, each jurisdiction in which the Company or such Subsidiary, as the case may be, owns or leases properties, has an office, or in which business is conducted and such qualification is required, except where the failure to so qualify would not have a Material Adverse Effect; and the Company is duly registered and in good standing under the BHCA; and neither the Company nor any Subsidiary is subject to any current formal arrangements or memorandum of understanding with, or cease and desist order by, any banking or similar regulatory agency, other than commitments to the Federal Reserve Bank dated in 1989, as amended March 12, 1991, March 14, 1994, February 5, 1996 and February 26, 1996.
(2) The Common Stock conforms to the description thereof in the Registration Statement;
(3) The authorized, issued and outstanding shares of Common Stock are as set forth in the Registration Statement, have been duly authorized and validly issued, and are fully paid and nonassessable and there are no preemptive, preferential, or other rights to subscribe for or purchase any shares of Common Stock or the Shares to be sold by the Company hereunder and, to the best of such counsel's knowledge after due investigation, no shares of Common Stock have been issued in violation of such rights; except as referred to in the Prospectus, there are no restrictions upon the voting or transfer of the Common Stock or the Shares pursuant to the Company's Articles of Incorporation, bylaws, and other governing documents, or any agreement or other instrument to which the Company or any of its business Subsidiaries is a party or by which any of them may be bound; all of the outstanding shares of capital stock of each Subsidiary have been duly authorized and validly issued, are fully paid and nonassessable, and are held free and clear of any lien, claim, encumbrance or security interests, except for the security interest in favor of Boatmen's First National Bank, N.A., which interest shall terminate immediately upon the application of the net proceeds from the sale of the Shares as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus; all offers, sales and all issuances of the issued shares of capital stock of the Company have been and its Subsidiaries within three years prior to the date hereof are, to the best of such counsel's knowledge, described in Part II of the Registration Statement, and were made in compliance with, and the offers and sales made from January 1995 through January 1996 were registered under or exempt from, the registration requirements of the Act and were duly and validly authorized and issued and are fully paid and non-assessableregistered or qualified under, or the subject of an available exemption from, the registration provisions of the applicable Blue Sky Laws;
(iii4) The Company has been duly qualified as a foreign corporation for Shares, when delivered to the transaction of business and is in good standing under Representatives or upon the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason order of the failure Representatives against payment therefor in accordance with the provisions of this Agreement, will be duly authorized and validly issued, fully paid, and nonassessable and the Underwriters will acquire good title to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly Shares sold by the Company, free and clear of all liensany lien, encumbrancesclaim, equities encumbrance, or claimsother security interest created by the Company;
(v5) To such counsel’s knowledge The Registration Statement and other than as set forth in all post-effective amendments thereto have become effective under the ProspectusAct, there are no legal or governmental proceedings pending to which stop order suspending the Company or any of its subsidiaries is a party or of which any property effectiveness of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; Registration Statement has been issued and, to the best of such counsel’s 's knowledge, no such proceedings for that purpose have been instituted or are threatened pending or contemplated under the Act, and all filings required by governmental authorities or threatened by others;
(vi) The execution Rule 424 and delivery of this Agreement, the issuance and sale Rule 430A of the Notes, Rules and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as Regulations have been obtained under made; the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus Prospectus, and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery each amendment or supplement thereto (other than except for the financial statements and related schedules and other statistical or financial information contained data included therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules Rules and regulations thereunderRegulations; and
(x) The documents incorporated by reference such counsel has participated in the Prospectus preparation of the Registration Statement and the Prospectus, including review of and discussion of the contents thereof, and no facts have come to the attention of such counsel which lead it to believe that either the Registration Statement, the Prospectus, or any further such amendment or supplement thereto supplement, as of their respective effective or issue dates, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as amended or supplemented, if applicable, as of the First Closing Date or the Second Closing Date, as the case may be, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which made by the Company prior to the Time of Delivery (other than except for the financial statements and related schedules and other statistical or financial information contained therein, data included therein as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has There are no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment amendments to the Registration Statement is required to be filed or that have not been so filed. To the best of such counsel's knowledge after due investigation, there are no legal or governmental proceedings pending or threatened that are required to be described in the Registration Statement that are not described as required, nor are there any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or to be filed as exhibits to the Prospectus which Registration Statement that are not described or filed or incorporated by reference or described as required; except that;
(6) The Company has full corporate power and authority to execute, with respect deliver, and perform this Agreement and to clauses (1)issue, (2)sell, (3) and (4) above, such counsel need not express a belief with respect deliver the Shares to be sold by it to the financial statements Underwriters as provided herein; this Agreement has been duly authorized, executed and related schedules and other financial information contained thereindelivered by the Company, and with respect to clause (i) aboveconstitutes a legal, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPvalid, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form binding obligation of the executed copy of Company and is enforceable against the letter Company in accordance with its terms, except that rights to indemnity or contribution may be delivered prior to the execution limited by federal or state securities laws and except as enforceability of this Agreement is attached as Annex I(a) and a form of the executed letter to may be delivered on the effective date of any post-effective amendment to the Registration Statementlimited by bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting creditors' rights generally, and as of by equitable principles limiting the Time of Delivery, is attached as Annex I(b)).right to specific performance or other equitable relief;
(f7) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since is, or with the date giving of notice or the lapse of time or both will be, in violation or breach of, or in default under, nor will the execution or delivery of, or performance and consummation of the latest audited financial statements included transactions contemplated by this Agreement (including the offer, sale or incorporated by reference delivery of the Shares) conflict with, or result in a violation or breach of, or constitute a default under, any provision of the Pricing Prospectus any loss Articles of Incorporation, bylaws (as amended or interference with its business from firerestated), explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt governing documents of the Company or any of its subsidiaries Subsidiary or any changeprovision of any agreement, contract, mortgage, deed of trust, lease, loan agreement, indenture, note, bond or other evidence of indebtedness, or any development involving other material agreement or instrument to which the Company or any Subsidiary is a prospective changeparty or by which any of them is bound, or to which any of their properties is subject, (in the case of any document not filed as an exhibit to the Registration Statement, to the knowledge of such counsel after due investigation), nor will the performance by the Company of its obligations hereunder violate any rule, regulation, order, or affecting decree known to such counsel after due investigation, applicable to the general affairsCompany or any Subsidiary of any court or any regulatory body, managementadministrative agency, financial positionor other governmental body having jurisdiction over the Company, stockholders’ equity any Subsidiary or results any of operations their respective properties, or any order of any court or governmental agency or authority entered in any proceeding to which the Company or any Subsidiary was or is now a party or by which it is bound;
(8) To the knowledge of such counsel, there are no holders of Common Stock or other securities of the Company with rights to have such securities included in the Registration Statement;
(9) No consent, approval, filing, authorization, registration, qualification, or order of or with any court or governmental agency or body (including any bank regulatory agency) is required for the issue and its subsidiaries, otherwise than as set forth sale of the Shares or in connection with the consummation of the transactions contemplated in this Agreement, other than such as have been obtained or made;
(10) Neither the Pricing Prospectus, the effect of which, Company nor any Subsidiary owns any equity interest in any such case corporation, joint venture, proprietorship, or other commercial entity or organization except the Subsidiaries listed in the Registration Statement; and the Company owns, directly or indirectly, beneficially and of record all of the outstanding capital stock of each Subsidiary free and clear of any claim, lien, encumbrance, or security interest, except for the security interest in favor of Boatmen's First National Bank, N.A., which interest shall terminate immediately upon the application of the net proceeds of the sale of the Shares as described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.;
(g11) The Company shall Common Stock has been designated for inclusion as a National Market System security on Nasdaq;
(12) The conditions for the use of Form SB-2 have complied with the provisions of the first sentence of Section 5(A)(d) hereof been satisfied with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.Registration Statement;
(h13) On or after Except where such failure would not be reasonably likely to have a Material Adverse Effect, the Applicable Time (i) no downgrading shall Company and each Subsidiary have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Actand hold, and (ii) are in substantial compliance with, all Permits required under all state and federal laws, rules, and regulations in connection with their respective businesses, and all of such Permits are in full force and effect; and, to the knowledge of such counsel after due investigation, there is no such organization shall have publicly announced that it pending proceeding, and neither the Company nor any Subsidiary has under surveillance, outlook, watch or review, with possible negative implications, its rating received notice of any of threatened proceeding, relating to the Company’s debt securities revocation or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect modification of any such event specified in clause Permit. Neither the Company nor any Subsidiary is (iv) by virtue of any action, omission to act, contract to which it is a party or (vby which it is bound, or any occurrence or state of facts whatsoever) in violation of any applicable federal or state laws, rules, regulations, or, to the judgment knowledge of the Representatives makes it impracticable such counsel, orders issued pursuant to federal or inadvisable state statutes, laws, ordinances, rules, or regulations (including those relating to proceed with the public offering any aspect of banking, bank holding companies, environmental protection, occupational safety and health, and equal employment practices), except any such violation that has been fully cured or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package satisfied without recourse or the Prospectus.that is not reasonably likely to have a Material Adverse Effect;
(j14) The Company shall have furnished is not an "investment company" or caused a company "controlled" by an "investment company," within the meaning of the Investment Company Act of 1940 and, upon its receipt of the net proceeds from the sale of the Shares, will not become or be deemed to be furnished an "investment company" thereunder; and
(15) Such counsel has reviewed all agreements, contracts, indentures, leases, and other documents and instruments referred to you at in the Time Registration Statement and the Prospectus and the descriptions of Delivery such documents are fairly summarized or disclosed therein, and filed as exhibits thereto as required and such counsel does not know, after due inquiry, of any agreements, contracts, indentures, leases or other documents or instrument required to be so summarized or disclosed or filed which have not been so summarized, disclosed, or filed. The descriptions in the Registration Statement of statutes, regulations, and legal or governmental proceedings are accurate and present fairly the information required to be shown. Such counsel may rely as to factual matters on certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such timestate officials and, as to the performance by the Company legal matters in jurisdictions other than those in which they are domiciled, on opinions of all of its respective obligations hereunder to be performed at or prior to such timelocal counsel, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.each case satisfactory to
Appears in 2 contracts
Sources: Underwriting Agreement (Gold Banc Corp Inc), Underwriting Agreement (Gold Banc Corp Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Province contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Province made in any certificates pursuant to the provisions hereof, to the performance by the Company Province of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof, shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereofof this Agreement; and the final term sheet contemplated by Section 5(A)(a4(a) hereof, and any other material required to be of this Agreement shall have been timely filed by with the Company Commission pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for the Company, The Representatives shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters received an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇the Minister of Justice and Attorney General, General the Deputy Attorney General, the Assistant Deputy Attorney General, the Director of Civil Legal Services, the Assistant Director of Civil Legal Services or a Crown Counsel of the CompanyProvince of Manitoba, counsel for the Province, to the effect that:
(i) The Company has Securities have been duly incorporated authorized, executed, issued and is validly existing as a corporation delivered in good standing under accordance with the laws of the State Province of GeorgiaManitoba, the Order or Orders of the Lieutenant Governor in Council of the Province applicable thereto and is duly registered as a bank holding company under any laws of Canada applicable thereto and constitute valid and legally binding, direct and unconditional general obligations of the Bank Holding Company Act of 1956, as amended, Province in accordance with power and authority to own its properties and conduct its business as described in the Prospectustheir terms;
(ii) The Company has an authorized capitalization as set forth in the ProspectusSecurities rank pari passu with all other debentures, bonds and all notes constituting general obligations of the issued shares of capital stock of Province outstanding on the Company have been duly and validly authorized and issued and are fully paid and non-assessableClosing Date;
(iii) The Company All necessary action has been duly qualified as a foreign corporation for taken by or on behalf of the transaction of business Province, and is in good standing all necessary authorizations and approvals under the laws of each other jurisdiction in which it owns the Province of Manitoba and under the laws of Canada have been duly obtained (or leases properties no such authorizations or conducts any business so as to require such qualification or is subject to no material liability or disability approvals under the laws of Canada are necessary), for the authorization, execution and delivery by reason the Province of the failure to be so qualified in any such jurisdictionthis Agreement;
(iv) SunTrust Bank has This Agreement and the Fiscal Agency Agreement have been duly incorporated authorized, executed and is validly existing as a corporation delivered by the Province in good standing under accordance with the laws of the State Province of Georgia; and except as set forth in Manitoba, the Prospectus, all Order or Orders of the issued shares Lieutenant Governor in Council of capital stock the Province applicable thereto and any laws of SunTrust Bank Canada applicable thereto (or there are owned directly or indirectly by the Company, free and clear no laws of all liens, encumbrances, equities or claimsCanada applicable thereto);
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there There are no legal withholding or governmental proceedings pending to which other income taxes or capital gains taxes payable under the Company or any laws of its subsidiaries is a party Canada or of which any property the Province of Manitoba in respect of the Company Securities or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries andpremium, if determined adversely any, or the interest thereon by an owner who is not, and is not deemed to be, a resident of Canada and who does not use or hold, and who is not deemed to use or hold, the Company Securities in carrying on business in Canada, and no estate taxes or any succession duties are presently imposed by Canada or the Province of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersManitoba;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such Such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of that either the Registration StatementStatement or the Prospectus, or any amendment or supplement thereto, as of its effective datetheir respective dates and as of the Closing Date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading; or
(4) any amendment the opinion with respect to Canadian taxes under the caption “Description of Securities” in the Prospectus is accurately described therein; the descriptions in the Registration Statement is and Prospectus of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information required to be filed shown; and such counsel does not know of any legal or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or governmental proceedings required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not described and filed as required;
(vii) The execution and delivery by the Province of this Agreement and the Fiscal Agency Agreement, the creation, offering, issue and sale of the Securities and the performance by the Province of its obligations under this Agreement and the Fiscal Agency Agreement will not violate, conflict with or result in a breach of any indenture, agreement or other instrument to which the Province is a party or by which the Province is bound; except thatand
(viii) No litigation or proceedings of any nature are now pending or threatened attacking or in any way attempting to restrain or enjoin the issue and delivery of the Securities or in any manner questioning the authority and proceedings under which the Securities are issued, with respect or affecting the validity thereof, or contesting the title or official capacity of any of the persons authorized by the applicable Order of the Lieutenant Governor in Council to clauses (1)sign the Securities, (2)or the authority of any of the persons authorized by said Order in Council to countersign the Securities under the designation “Authorized Signing Officer”, (3) and (4) aboveno authority or proceedings for the issuance of the Securities have been modified, repealed, revoked or rescinded in whole or in part. In rendering such opinion, such counsel need not express a belief with respect to may rely upon the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇opinion of S▇▇▇▇▇▇▇ & C▇▇▇▇▇▇▇ LLP as to matters of United States law and procedure and need not express any opinion as to the financial statements or other financial data contained in the Registration Statement and the Prospectus.
(c) The Representatives shall have received from G▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, Canadian counsel to the Underwriters, given in respect of the laws of Manitoba and Canada, such opinion or opinions, dated the Closing Date, with respect to the validity of the Securities, the Registration Statement, the Pricing Disclosure Package, the Prospectus and other related matters as the Representatives may require, and the Province shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion or opinions, such counsel may rely upon the opinion of S▇▇▇▇▇▇▇ & C▇▇▇▇▇▇▇ LLP as to matters of United States law and procedure and need not express any opinion or belief as to the financial statements or other financial or statistical data contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(d) The Representatives shall have received from S▇▇▇▇▇▇▇ & C▇▇▇▇▇▇▇ LLP, United States counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such the validity of the Securities, the Registration Statement, the Pricing Disclosure Package, the Prospectus and other related matters as the Underwriters Representatives may reasonably require, and the Province shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP In rendering such opinion or opinions, such counsel may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates opinions of such entities counsel named in paragraphs (b) and (iic) of this Section as to matters governed by Georgia Lawof Canadian and Manitoba law and procedure, upon and need not express any opinion or belief as to the opinion of King & Spalding LLP financial statements or other financial or statistical data contained in the Registration Statement, the Pricing Disclosure Package and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectivelyProspectus.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, Subsequent to the effect set forth in Annex I (a form execution and delivery of the executed copy of the letter to be delivered this Agreement and on or prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration StatementClosing Date, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or occurred (i) any change, or any development involving a prospective change, in or affecting particularly the general affairs, management, condition (financial position, stockholders’ equity or results of operations other) of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of Province which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery a majority in interest of the Notes on Underwriters, including any Representatives, materially impairs the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions investment quality of the first sentence of Section 5(A)(dSecurities; or (ii) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no any downgrading shall have occurred in the rating accorded of the CompanyProvince’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” (as that term is defined by the Commission for purposes of Rule 436(g)(2436(g) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock).
(if) On or after The Representatives shall have received a certificate, dated the Applicable Time there shall not have occurred any Closing Date, of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation Minister of hostilities involving the United States Finance or the declaration by Deputy Minister of Finance, the United States Assistant Deputy Minister of a national emergency Finance — Treasury Division or war or (v) the occurrence Director of any other calamity or crisis or any change in financialCapital Markets, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery Province of the Notes on the terms and Manitoba in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as which such official, to the accuracy best of such person’s knowledge after reasonable investigation, shall state that the representations and warranties of the Company herein at Province in this Agreement are true and as of such timecorrect, as to the performance by the Company of Province has complied with all of agreements and satisfied all conditions on its respective obligations hereunder part to be performed or satisfied hereunder at or prior to such timethe Closing Date, as no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(g) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province of Manitoba or the State of New York.
(h) The Province shall have furnished to the matters set forth Representatives or their counsel such further certificates and documents as the Representatives or such counsel request. All such opinions, certificates and documents will be in subsections (a) compliance with the provisions hereof only if they are satisfactory to the Underwriters or the Representatives and (f) to S▇▇▇▇▇▇▇ & C▇▇▇▇▇▇▇ LLP, counsel to the Underwriters. The Province will furnish the Representatives with such conformed copies of this Section such opinions, certificates, letters and documents as to such other matters as you may they reasonably request.
Appears in 2 contracts
Sources: Underwriting Agreement (Province of Manitoba), Underwriting Agreement (Province of Manitoba)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters Underwriters, as to purchase the Notes Securities to be purchased at each Time of Delivery, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the date hereof, as of the Applicable Time, the date hereof Time and the Closing Dateat and as of such Time of Delivery, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof); the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.;
(b) King & Spalding LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated the Closing Datesuch Time of Delivery, in form and substance satisfactory to you, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP , and such counsel shall have received such papers and information as they may rely reasonably request to enable them to pass upon such matters;
(ic) The Company’s Senior Corporate Counsel or such other internal counsel as to those matters that relate shall be reasonably acceptable to the Indenture Trustee, upon Underwriters (the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c“Internal Counsel”), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letterssuch counsel’s written opinion, to the effect set forth in Exhibit C, dated the respective dates such Time of delivery thereofDelivery, in form and substance satisfactory to you;
(d) ▇▇▇▇▇▇▇ LLP, Maryland counsel for the Company, shall have furnished to you their written opinion, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration StatementExhibit B, and as of the dated such Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, form and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees substance satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.you;
Appears in 2 contracts
Sources: Underwriting Agreement (Huntington Bancshares Inc/Md), Underwriting Agreement (Huntington Bancshares Inc/Md)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company and the Selling Stockholders contained herein as of the Applicable Execution Time, the Closing Date and any settlement date hereof and the Closing Datepursuant to Section 3 hereof, to the accuracy of the statements of the Company and the Selling Stockholders made in any certificates delivered pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholders of its their respective obligations hereunder and to the following additional conditions:
(a) The Prospectus shall Prospectus, and any supplement thereto, have been filed with in the Commission pursuant to manner and within the time period required by Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof); the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any part thereof notice objecting to its use shall have been issued issued, and no proceeding proceedings for that purpose shall have been initiated instituted or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfactionthreatened.
(b) King The Company shall have requested and caused Fish & Spalding LLP▇▇▇▇▇▇▇▇▇▇ P.C., counsel for the Company, shall to have furnished to the Underwriters an opinion or opinionsRepresentatives their opinion, dated the Closing DateDate and addressed to the Representatives, to the effect that:
(i) This Agreement the Registration Statement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified become effective under the Trust Indenture Act;
(iii) The issuance, execution and delivery ; any required filing of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all 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 issued shares of capital stock of the Company Registration Statement has been issued, no proceedings for that purpose have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities instituted or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, SEC and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes Registration Statement and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information or accounting data contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statementtherein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules and regulations thereunderthereunder (except counsel expresses no statement or belief as to Regulation S-T); and
(x) The to the knowledge of such counsel, there are no documents incorporated by reference that are required to be filed as exhibits to the Registration Statement that are not so filed or any documents that are required to be summarized in the Preliminary Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements Prospectus that are not so summarized; and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of that on the Effective Date the Registration Statement, as of its effective date, Statement contained an any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleadingmisleading or that the Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial or accounting data contained therein, as to which such counsel need express no opinion);
(2ii) such counsel has no reason to believe that the Pricing Disclosure Package, as amended or supplemented at the Execution Time, and the price to the public, the number of Underwritten Securities and the number of Option Securities to be included on the cover page of the Applicable TimeProspectus, when taken together as a whole, contained an any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading (other than the financial statements and other financial or accounting data contained therein, as to which such counsel need express no opinion);
(3iii) each of the Company and Alternative Energy Resources, Inc., Clean Power Markets, Inc., Comverge Energy Management, Inc., Comverge Energy Partners, Ltd., Comverge Giants, Inc., Comverge Utah, Inc., Enerwise Global Technologies, Inc. PES NY, LLC, Public Electric, Inc., Public Energy Solutions, LLC, Public Energy Solutions NY, LLC and 6D Comverge, Inc. (individually a “Subsidiary and collectively the “Subsidiaries”) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with the corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification as set forth on Schedule V;
(iv) all the issued and outstanding equity interests of Alternative Energy Resources, Inc., Comverge Energy Management, Inc., Comverge Energy Partners, Ltd., Comverge Giants, Inc., Enerwise Global Technologies, Inc. and 6D Comverge, Inc. have been duly authorized and validly issued and are fully paid and nonassessable and are owned of record by the Company or by one of the Company’s wholly owned subsidiaries (except to the extent that such nonassessability may be affected by Section 153.112 of the Texas Business Organizations Code); and, except as set forth in the Disclosure Package and the Prospectus, the Company or such wholly owned subsidiary owns such equity interests free and clear of all Liens (A) in respect of which a financing statement under the Delaware Uniform Commercial Code or the Texas Uniform Commercial Code, as applicable, naming the owner of the equity interests of such Subsidiary as debtor is on file as of its a recent date and as in the office of the date hereofSecretary of State of the State of Delaware or the Secretary of State of the State of Texas, contained as applicable, or contains an untrue statement of a material fact or omitted or omits (B) otherwise known to state any material fact required to be stated therein or necessary in order to make such counsel after due inquiry;
(v) the statements therein, Company’s authorized equity capitalization is as set forth in the light Disclosure Package and the Prospectus; the capital stock of the circumstances Company consists of 150,000,000 shares of Common Stock and 15,000,000 shares of preferred stock, par value $0.001 per share (the “Preferred Stock”), and such capital stock (including the shares of Common Stock owned by the Selling Stockholders) conforms as to legal matters to the description thereof contained in the Disclosure Package and the Prospectus under which they were madethe heading “Description of Capital Stock;” the outstanding shares of Common Stock (including the Securities being sold hereunder by the Selling Stockholders) have been duly and validly authorized and issued and are fully paid and nonassessable, immediately after giving effect to the consummation of the issuance and sale of the Securities pursuant to this Agreement and no shares of Preferred Stock will be issued and outstanding; the Securities being sold hereunder by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Agreement, will be fully paid and nonassessable; the Securities being sold by the Company and the Selling Stockholders are duly listed, and admitted and authorized for trading, on the Nasdaq Global Market, subject to official notice of issuance; the certificates for the Securities are in valid and sufficient form; the holders of outstanding shares of capital stock of the Company are not misleadingentitled to preemptive or other rights to subscribe for the Securities; orand, except as set forth in the Disclosure Package and the Prospectus, to such counsel’s knowledge, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(4vi) any amendment to the Registration Statement knowledge of such counsel, there is required to be filed no pending or that there are threatened action, suit or proceeding by or before any contracts court or other documents governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property of a character required to be filed as an exhibit to disclosed in the Registration Statement which is not adequately disclosed in the Preliminary Prospectus and the Prospectus, and there is no franchise, contract or required to be incorporated by reference into the Prospectus or other document of a character required to be described in the Registration Statement or the Prospectus Prospectus, or to be filed as an exhibit thereto, which are is not described or filed or incorporated by reference or described as required; and the statements included in the Preliminary Prospectus and the Prospectus under the headings “Material U.S. Federal Tax Consequences for Non-U.S. Holders of Common Stock,” “Risk Factors—If we are unable to protect our intellectual property, our business and results of operations could be negatively affected,” “Risk Factors—We may be subject to damaging and disruptive intellectual property litigation related to allegations that our products or services infringe on intellectual property held by others, which could result in the loss of use of the product or service,” “Description of Capital Stock,” “Underwriting,” “Shares Eligible for Future Sale,” and Item 14 in the Registration Statement insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(vii) this Agreement has been duly authorized, executed and delivered by the Company;
(viii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(ix) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except thatsuch as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters in the manner contemplated in this Agreement and in the Preliminary Prospectus and the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(x) neither the issue and sale of the Securities, with respect to clauses (1)nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or imposition of any Lien upon any property or assets of the Company or its subsidiaries pursuant to, (2)i) the charter or bylaws of the Company or its subsidiaries, (3ii) and the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or its subsidiaries is a party or bound or to which its or their property is subject, in each case, that is filed as Exhibit 10.1 through 10.45 to the Registration Statement, or (4iii) aboveapplicable laws of the United States of America, the State of New York, the State of Texas or the General Corporation Law of the State of Delaware or any statute, rule, regulation, judgment, order or decree applicable to the Company or its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or its subsidiaries or any of its or their properties; and
(xi) except as set forth in the Registration Rights Agreement, no holders of securities of the Company have rights to the registration of such securities under the Registration Statement. In rendering such opinion, such counsel need not express a belief with respect may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York, the State of Texas, the General Corporation Law of the State of Delaware or the Federal laws of the United States, to the financial statements extent they deem proper and related schedules specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and other financial information contained thereinwho are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and with respect public officials. References to clause the Prospectus in this paragraph (ib) above, such counsel need not express a belief with respect to shall also include any Form T-1supplements thereto at the Closing Date.
(dc) The Underwriters Selling Stockholders shall have received from requested and caused Fish & ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPP.C., and such other firm(s) as may be agreed by the Underwriters, counsel for the UnderwritersSelling Stockholders, such to have furnished to the Representatives their opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate Date and addressed to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to youRepresentatives, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.that:
(i) On this Agreement has been duly authorized, executed and delivered by or after on behalf of each Selling Stockholder;
(ii) the Applicable Time there shall not have occurred Custody Agreement and Power of Attorney of each Selling Stockholder has been duly authorized, executed and delivered by each Selling Stockholder and constitutes the legal, valid and binding obligation of such Selling Stockholder, enforceable against such Selling Stockholder in accordance with its terms, and such Selling Stockholder has the full legal right and authority to sell, transfer and deliver its shares of Common Stock in the manner provided by this Agreement, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification thereunder may be limited by federal or state securities laws or public policy relating thereto;
(iii) none of (i) the offering and sale by any of the following: Selling Stockholders of the Common Stock to be sold by such Selling Stockholders to the Underwriters pursuant to the terms of this Agreement or (ii) the execution and delivery of this Agreement by any of the Selling Stockholders, or the consummation of the transactions contemplated thereby by any of the Selling Stockholders, (A) constituted, constitutes or will constitute a violation of the charter, bylaws or other organizational documents of such Selling Stockholder or (B) resulted, results or will result in any violation of (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; Delaware Revised Uniform Limited Partnership Act, (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; Delaware General Corporation Law, (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; Delaware Limited Liability Company Act, (iv) the outbreak or escalation applicable laws of hostilities involving the United States or State of Texas, (v) the declaration by applicable laws of the State of New York, (vi) the applicable laws of the State of California (vii) the applicable laws of the United States of a national emergency or war America or (vviii) such other applicable laws applicable to such Selling Stockholder. None of (i) the occurrence offering and sale by any of the Selling Stockholders of the Common Stock to be sold by such Selling Stockholders to the Underwriters pursuant to the terms of this Agreement or (ii) the execution and delivery of this Agreement by any of the Selling Stockholders, or the consummation of the transactions contemplated thereby by any of the Selling Stockholders, (A) constituted, constitutes or will constitute a breach or violation of, or a default (or an event that, with notice or lapse of time or both, would constitute such a default) under, or conflict with, any Applicable Agreement (as defined in such opinion) or (B) resulted, results or will result in the contravention of any other calamity or crisis or any change Applicable Order (as defined in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause opinion);
(iv) upon payment for the Common Stock to be sold by the Selling Stockholders, delivery of such Common Stock, as directed by the Underwriters, to Cede & Co. or (v) such other nominee as may be designated by the Depository Trust Company, registration of such Common Stock in the judgment name of Cede & Co. or such other nominee and the crediting of such Common Stock on the books of the Representatives makes it impracticable or inadvisable Depository Trust Company to proceed with “securities accounts” (within the public offering or the delivery meaning of Section 8-501(a) of the Notes on the terms and Uniform Commercial Code as in effect in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(jState of New York) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Underwriters (assuming that neither the Depository Trust Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of nor any such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.Un
Appears in 2 contracts
Sources: Underwriting Agreement (Comverge, Inc.), Underwriting Agreement (Comverge, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Execution Time, the Closing Date and any settlement date hereof and the Closing Datepursuant to Section 3, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with Registration Statement, including any Rule 462(b) Registration Statement, has become effective and, at the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereofClosing Date, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have post-effective amendment thereto has been issued under the Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceeding proceedings for that purpose any of those purposes have been instituted or are pending or, to the Company’s knowledge, contemplated; and the Company has complied with each request (if any) from the Commission for additional information. A prospectus containing the Rule 430A Information shall have been initiated or threatened by filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) or a post-effective amendment providing such information shall have been filed with, and declared effective by, the Commission in accordance with the requirements of Rule 430A; and no notice of objection of the Commission objecting to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; issued and no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus proceedings for that purpose shall have been initiated instituted or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfactionthreatened.
(b) King & Spalding LLPThe Company shall have requested and caused ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, P.A., counsel for the Company, to have furnished to the Representatives its opinion and 10b-5 statement dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives.
(c) The Representatives shall have received from Sidley Austin LLP, counsel for the Underwriters, its opinion and 10b-5 statement, dated the Closing Date and any settlement date, as applicable, and addressed to the Representatives, in a form reasonably acceptable to the Representatives, and the Company shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the such counsel such documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport may request for purpose of enabling them to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respectspass upon such matters.
(cd) The Company shall have furnished to the Underwriters an opinionRepresentatives a certificate of the Company, signed by its Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing DateDate and any settlement date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Companyas applicable, to the effect that the signers of such certificate have carefully examined the Registration Statement, each Preliminary Prospectus, the Prospectus and any amendment or supplement thereto, and each “road show” as defined in Rule 433(h) of the Act used in connection with the Offering, and this Agreement and that:
(i) The the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has been duly incorporated complied with all the agreements and is validly existing as a corporation in good standing under satisfied all the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority conditions on its part to own its properties and conduct its business as described in the Prospectusbe performed or satisfied at or prior to such date;
(ii) The the Company has an authorized capitalization as set forth in complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessableClosing Date;
(iii) The Company no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been duly qualified as a foreign corporation issued and no proceedings for that purpose have been instituted or, to the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;Company’s knowledge, threatened; and
(iv) SunTrust Bank since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and no Material Adverse Effect, except as set forth in or contemplated in the Prospectus, all Statutory Prospectus and the Prospectus (exclusive of any supplement thereto).
(e) The Company shall have furnished to the Representatives a certificate of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property Chief Financial Officer of the Company or any of its subsidiaries dated the date that this Agreement is executed and delivered by the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreementparties hereto, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus Closing Date and any further amendments and supplements theretosettlement date, as applicable, made by the Company prior in form and substance satisfactory to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1Representatives.
(df) The Underwriters Company shall have received from requested and caused ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate have furnished to the Indenture TrusteeRepresentatives, upon at the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Execution Time and at the Time of DeliveryClosing Date and any settlement date, Ernst & Young LLP shall have furnished to you a letter or as applicable, letters, dated respectively as of the respective dates Execution Time and as of delivery thereofthe Closing Date and any settlement date, as applicable, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b))Representatives.
(fg) Neither Subsequent to the Company nor any of its Significant Subsidiaries shall have (i) sustained since Execution Time or, if earlier, the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the capital stock letter or long-term debt letters referred to in paragraph (f) of the Company this Section 6 or any of its subsidiaries or (ii) any change, or any development involving a prospective change, in or affecting the general affairsearnings, business, management, properties, assets, rights, operations, condition (financial position, stockholders’ equity or results of operations otherwise) or prospects of the Company and its subsidiariesCompany, otherwise than whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Pricing Prospectus, Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any such case described referred to in clause (i) or (ii)) above, is is, in the sole judgment of the Representatives Representatives, so material and adverse as to make it impracticable impractical or inadvisable to proceed with the public offering or the delivery of the Notes on Securities as contemplated by the terms Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
Prospectus (g) The Company shall have complied with the provisions exclusive of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreementany supplement thereto).
(h) On or after Prior to the Applicable Time (i) no downgrading Closing Date, and any settlement date, as applicable, the Company shall have occurred in furnished to the rating accorded Representative such further information, certificates and documents as the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stockRepresentatives may reasonably request.
(i) On or after the Applicable Time there FINRA shall not have occurred raised any objection with respect to the fairness or reasonableness of the following: (i) a suspension underwriting or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment arrangements of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner transactions contemplated in the Pricing Disclosure Package or the Prospectushereby.
(j) The Securities shall be duly listed subject to notice of issuance on Nasdaq, satisfactory evidence of which shall have been provided to the Representatives.
(k) On the Effective Date, the Company shall have furnished delivered to the Representatives executed copies of the Trust Agreement, the Warrant Agreement, the Securities Purchase Agreements, the Warrant Subscription Agreement, the Insider Letters, the Anchor Investment Agreements, and the Registration and Stockholder Rights Agreement. By the Closing Date, the Company shall have delivered to the Representatives an executed copy of the Administrative Services Agreement. With regard to the Insider Letters, if any additional persons shall become executive officers, directors or caused to be furnished to you at the Time of Delivery certificates of officers director nominees of the Company and trustees satisfactory to you as prior to the accuracy end of the representations 180-day restricted period referred to in Section 5(h), the Company shall cause each such person, prior to or contemporaneously with their appointment or election as an executive officer, director and warranties director nominee to execute and deliver to the Representative the Insider Letters.
(l) The Sponsor (at least one (1) Business Day prior to the Effective Date) shall have caused the purchase price for the Private Placement Warrants to be deposited into the Trust Account so that together with the net proceeds for the Firm Securities (including the Deferred Discount), or with respect to the Firm Securities, the net proceeds from the Option Securities (including the Deferred Discount), the Trust Account would equal the product of the number of Units sold and the public offering price per Unit as set forth on the cover of the Prospectus. Notwithstanding the foregoing, in no event will the Company herein at take any action that would result in the Company receiving proceeds from the sale of the Private Placement Warrants in excess of the sum of: (i) the amount required to satisfy the obligation in the immediately preceding sentence; (ii) the amount of the discount from the public offering price represented by the purchase price set forth in Schedule II of this Agreement and as (iii) the amount of such time, as money to the performance be held by the Company outside of the Trust Account, as disclosed in the Registration Statement, the Statutory Prospectus and the Prospectus.
(m) No order preventing or suspending the sale of the Units in any jurisdiction designated by the Representatives pursuant to Section 5(ii) hereof shall have been issued as of the Closing Date, and no proceedings for that purpose shall have been instituted or shall have been threatened. If any of the conditions specified in this Section 6 shall not have been fulfilled 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 reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of its respective obligations the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be performed delivered by this Section 6 and, if applicable, the last sentence of Section 3(d), shall be delivered at the office of Sidley Austin LLP, counsel for the Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, unless otherwise indicated herein, on the Closing Date or prior to such timethe applicable settlement date, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably requestapplicable.
Appears in 2 contracts
Sources: Underwriting Agreement (Crixus BH3 Acquisition Co), Underwriting Agreement (Crixus BH3 Acquisition Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Province contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Province made in any certificates pursuant to the provisions hereof, to the performance by the Company Province of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof, shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereofof this Agreement; and the final term sheet contemplated by Section 5(A)(a4(a) hereof, and any other material required to be of this Agreement shall have been timely filed by with the Company Commission pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for the Company, The Representatives shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters received an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇the Minister of Justice and Attorney General, General the Deputy Attorney General, the Assistant Deputy Attorney General, the Director of Civil Legal Services, the Assistant Director of Civil Legal Services or a Crown Counsel of the CompanyProvince of Manitoba, counsel for the Province, to the effect that:
(i) The Company has Securities have been duly incorporated authorized, executed, issued and is validly existing as a corporation delivered in good standing under accordance with the laws of the State Province of GeorgiaManitoba, the Order or Orders of the Lieutenant Governor in Council of the Province applicable thereto and is duly registered as a bank holding company under any laws of Canada applicable thereto and constitute valid and legally binding, direct and unconditional general obligations of the Bank Holding Company Act of 1956, as amended, Province in accordance with power and authority to own its properties and conduct its business as described in the Prospectustheir terms;
(ii) The Company has an authorized capitalization as set forth in the ProspectusSecurities rank pari passu with all other debentures, bonds and all notes constituting general obligations of the issued shares of capital stock of Province outstanding on the Company have been duly and validly authorized and issued and are fully paid and non-assessableClosing Date;
(iii) The Company All necessary action has been duly qualified as a foreign corporation for taken by or on behalf of the transaction of business Province, and is in good standing all necessary authorizations and approvals under the laws of each other jurisdiction in which it owns the Province of Manitoba and under the laws of Canada have been duly obtained (or leases properties no such authorizations or conducts any business so as to require such qualification or is subject to no material liability or disability approvals under the laws of Canada are necessary), for the authorization, execution and delivery by reason the Province of the failure to be so qualified in any such jurisdictionthis Agreement;
(iv) SunTrust Bank has This Agreement and the Fiscal Agency Agreement have been duly incorporated authorized, executed and is validly existing as a corporation delivered by the Province in good standing under accordance with the laws of the State Province of Georgia; and except as set forth in Manitoba, the Prospectus, all Order or Orders of the issued shares Lieutenant Governor in Council of capital stock the Province applicable thereto and any laws of SunTrust Bank Canada applicable thereto (or there are owned directly or indirectly by the Company, free and clear no laws of all liens, encumbrances, equities or claimsCanada applicable thereto);
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there There are no legal withholding or governmental proceedings pending to which other income taxes or capital gains taxes payable under the Company or any laws of its subsidiaries is a party Canada or of which any property the Province of Manitoba in respect of the Company Securities or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries andpremium, if determined adversely any, or the interest thereon by an owner who is not, and is not deemed to be, a resident of Canada and who does not use or hold, and who is not deemed to use or hold, the Company Securities in carrying on business in Canada, and no estate taxes or any succession duties are presently imposed by Canada or the Province of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersManitoba;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such Such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of that either the Registration StatementStatement or the Prospectus, or any amendment or supplement thereto, as of its effective datetheir respective dates and as of the Closing Date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, therein not misleading; or
(4) any amendment the opinion with respect to Canadian taxes under the caption “Description of Securities” in the Prospectus is accurately described therein; the descriptions in the Registration Statement is and Prospectus of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information required to be filed shown; and such counsel does not know of any legal or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or governmental proceedings required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required, nor of any contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement which are not described and filed as required;
(vii) The execution and delivery by the Province of this Agreement and the Fiscal Agency Agreement, the creation, offering, issue and sale of the Securities and the performance by the Province of its obligations under this Agreement and the Fiscal Agency Agreement will not violate, conflict with or result in a breach of any indenture, agreement or other instrument to which the Province is a party or by which the Province is bound; except thatand
(viii) No litigation or proceedings of any nature are now pending or threatened attacking or in any way attempting to restrain or enjoin the issue and delivery of the Securities or in any manner questioning the authority and proceedings under which the Securities are issued, or affecting the validity thereof, or contesting the title or official capacity of any of the persons authorized by the applicable Order of the Lieutenant Governor in Council to sign the Securities, or the authority of any of the persons authorized by said Order in Council to countersign the Securities under the designation “Authorized Signing Officer”, and no authority or proceedings for the issuance of the Securities have been modified, repealed, revoked or rescinded in whole or in part. In rendering such opinion, such counsel may rely upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP as to matters of United States law and procedure and need not express any opinion as to the financial statements or other financial data contained in the Registration Statement and the Prospectus.
(c) The Representatives shall have received from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, Canadian counsel to the Underwriters, given in respect of the laws of Manitoba and Canada, such opinion or opinions, dated the Closing Date, with respect to clauses (1)the validity of the Securities, (2)the Registration Statement, (3) the Pricing Disclosure Package, the Prospectus and (4) aboveother related matters as the Representatives may require, and the Province shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion or opinions, such counsel may rely upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP as to matters of United States law and procedure and need not express a any opinion or belief with respect as to the financial statements and related schedules and or other financial information or statistical data contained thereinin the Registration Statement, the Pricing Disclosure Package and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1the Prospectus.
(d) The Underwriters Representatives shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, United States counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such the validity of the Securities, the Registration Statement, the Pricing Disclosure Package, the Prospectus and other related matters as the Representatives may require, and the Province shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion or opinions, such counsel may rely upon the opinions of counsel named in paragraphs (b) and (c) of this Section as to matters of Canadian and Manitoba law and procedure, and need not express any opinion or belief as to the financial statements or other financial or statistical data contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(e) Subsequent to the execution and delivery of this Agreement and on or prior to the Closing Date, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the condition (financial or other) of the Province which, in the judgment of a majority in interest of the Underwriters, including any Representatives, materially impairs the investment quality of the Securities; or (ii) any downgrading in the rating of the Province’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act).
(f) The Representatives shall have received a certificate, dated the Closing Date, of the Minister of Finance or the Deputy Minister of Finance, the Assistant Deputy Minister of Finance — Treasury Division or Director of Capital Markets, of the Province of Manitoba in which such official, to the best of such person’s knowledge after reasonable investigation, shall state that the representations and warranties of the Province in this Agreement are true and correct, the Province has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission.
(g) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province of Manitoba or the State of New York.
(h) The Province shall have furnished to the Representatives or their counsel such further certificates and documents as the Representatives or such counsel request. All such opinions, certificates and documents will be in compliance with the provisions hereof only if they are satisfactory to the Underwriters may reasonably require. or the Representatives and to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate LLP, counsel to the Indenture Trustee, upon Underwriters. The Province will furnish the certificate or certificates Representatives with such conformed copies of such entities opinions, certificates, letters and (ii) documents as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may they reasonably request.
Appears in 2 contracts
Sources: Underwriting Agreement (Province of Manitoba), Underwriting Agreement (Province of Manitoba)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Underwritten Shares and the Option Shares, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein in this Underwriting Agreement as of the Applicable Execution Time, the date hereof and Pre-funding Time, the Closing Date, the Settlement Date and the Option Closing Date, if any, pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder under this Underwriting Agreement and to the following additional conditions:
(a) The Prospectus Prospectus, and any supplement thereto, shall have been filed with in the Commission pursuant to manner and within the time period required by Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof); the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or any part thereof notice objecting to their use shall have been issued and no proceeding proceedings for that purpose shall have been initiated instituted or threatened threatened, and the Folleto has been filed in the manner and within the time period established by the Commission Spanish Act as developed by secondary legislation and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use effectiveness of the Prospectus Folleto or any Issuer Free Writing Prospectus notice objecting to its use shall have been initiated or threatened by the Commission; issued and all requests no proceedings for additional information on the part of the Commission that purpose shall have been complied with to your reasonable satisfactioninstituted or threatened.
(b) King & Spalding LLPKPMG Auditores, counsel S.L. (“KPMG”) has issued by not later than 11:59 p.m. (Madrid time) on the date hereof its special report for the Company, shall have furnished purposes of articles 308 and 506 of the Spanish Capital Companies Act confirming that the Purchase Price is at a “fair value” and that the figures contained in the report of the Board of Directors of the Company on the capital increase relating to the Underwriters an opinion or opinionsOffered Shares are, dated in their view, reasonable and take into account the Closing Date, value of the pre-emptive subscription rights of the shareholders of the Company that will be excluded with respect to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled capital increase relating to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respectsOffered Shares.
(c) The Company shall have requested and caused DLA Piper Spain, S.L.U. and DLA Piper LLP (US), counsel for the Company with respect to Spanish and U.S. law, respectively, to have furnished to the Underwriters an opinionRepresentatives their opinion or opinions, as the case may be, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of Date and addressed to the CompanyRepresentatives, to the effect that:that (subject to assumptions and qualifications reasonably acceptable to the Representatives):
(i) The Company has been duly incorporated the Registration Statement and is validly existing as a corporation in good standing the ADR Registration Statement have become effective under the laws Act; any required filing of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all 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 issued shares of capital stock of Registration Statement or the Company ADR Registration Statement or any notice objecting to their use has been issued, no proceedings for that purpose have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns instituted or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notesthreatened, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes Registration Statement and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The ADR Registration Statement, Statement and the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial and statistical information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statementtherein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of that on the Effective Date or the date the Registration Statement, as of its effective date, Statement was last deemed amended the Registration Statement or the ADR Registration Statement contained an any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleadingmisleading or that the Prospectus as of the date thereof and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(2ii) such counsel has no reason to believe that the Pricing Disclosure Package, as of amended or supplemented at the Applicable Execution Time, contained an any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion);
(3iii) the ProspectusDocumento de Registro was approved and registered by the CNMV pursuant to the Spanish Act on July 12, 2012, the Company filed with the CNMV the Relevant Fact Notice on the details of the Offering on [·]; to the knowledge of such counsel, no stop order suspending the effectiveness of the Documento de Registro has been issued, no proceedings for that purpose have been instituted or threatened and the Folleto (other than the financial statements and other financial and statistical information contained therein, as of its date and to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Spanish Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date hereof, the Folleto was last deemed amended the Spanish Documents contained or contains an any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Folleto as of the date thereof and on the Closing Date included or include any untrue statement of a material fact or omitted or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
misleading (4) any amendment to the Registration Statement is required to be filed or that there are any contracts or in each case, other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to than the financial statements and related schedules and other financial and statistical information contained therein, and with respect as to clause (i) above, which such counsel need not express a belief with respect to any Form T-1.no opinion);
(div) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for each of the Underwriters, such opinion Company and the Specified Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or opinions, dated the Closing Dateorganized, with respect full corporate power and authority to such matters own or lease, as the Underwriters case may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) be, and to operate its properties and conduct its business as to those matters that relate to described in the Indenture TrusteeDisclosure Package, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP Prospectus and the opinion Documento de Registro, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant each jurisdiction which requires such qualification except where the failure to Section 6(b) and 6(c), respectively.be so qualified or in good standing would not have a Material Adverse Effect;
(ev) At each of the Applicable Time Lock-Up Agreement Signatories (as hereinafter defined) that is a corporate entity has been duly incorporated and at is validly existing as a [corporation] in good standing under the Time laws of Deliverythe jurisdiction in which it is chartered or organized, Ernst & Young LLP shall with full corporate power and authority to enter into the Lock-Up Agreement, and each of the Lock-Up Agreement Signatories that is an individual has due authority to enter into the Lock-Up Agreement;
(vi) all the outstanding shares of capital stock of each Specified Subsidiary have furnished to you a letter been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Disclosure Package and the Prospectus, all outstanding shares of capital stock of each such Specified Subsidiary are owned by the Company either directly or letters, dated the respective dates through wholly owned subsidiaries free and clear of delivery thereof, in form and substance satisfactory to youany perfected security interest or, to the effect knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(vii) the Company’s authorized share capital is as set forth in Annex I (a form the Disclosure Package, the Prospectus and the Spanish Documents; the capital stock of the executed copy Company conforms in all material respects to the description thereof contained in the Disclosure Package, the Prospectus and the Spanish Documents; the outstanding Class A Shares and Class B Shares have been duly and validly authorized and issued and are fully paid and nonassessable; the Offered Shares being sold under this Underwriting Agreement by the Company have been duly and validly authorized, and, when issued and delivered to and paid for by the Underwriters pursuant to this Underwriting Agreement, and when the capital increase relating to the Offered Shares has been duly registered with the Mercantile Registry and the Offered Shares have been duly registered with Iberclear, the Offered Shares will be fully paid and nonassessable; the ADSs being sold under the Underwriting Agreement by the Company are duly authorized for trading, subject to official notice of issuance and evidence of satisfactory distribution, on the Nasdaq Global Select Market and application has been made for the Offered Shares to be duly admitted to listing on each of the letter to be delivered prior Madrid and Barcelona Stock Exchanges and authorized for trading on the SIB; the Offered Shares will conform in all material respects to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to description thereof contained in the Registration Statement, the ADR Registration Statement, the Disclosure Package, the Prospectus and as the Spanish Documents; the holders of outstanding shares of capital stock of the Time Company and of Deliverybonds convertible into Class A Shares or Class B Shares of the Company are not entitled to preemptive or other rights to subscribe for the Offered Shares other than those as have been duly excluded in accordance with Spanish law; and, is attached except as Annex I(b)).set forth in the Disclosure Package and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding and there are no commitments by the Company to create, issue, sell or otherwise dispose of, shares of capital stock of or ownership interests in the Company;
(fviii) Neither insofar as matters of Spanish law, United States Federal law and New York State law are concerned, to the Company nor knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental actionagency, order authority or decree, otherwise than as set forth body or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of arbitrator involving the Company or any of its subsidiaries or any changeits or their property of a character required to be disclosed in the Registration Statement, the ADR Registration Statement or the Spanish Documents which is not adequately disclosed in the Disclosure Package, the Prospectus and the Spanish Documents, and there is no franchise, contract or other document of a character required to be described in the Registration Statement, the ADR Registration Statement, the Disclosure Package, the Prospectus or the Spanish Documents, or any development involving a prospective changeto be filed as an exhibit thereto, which is not described or filed as required; the descriptions contained in the Prospectus under the heading “Taxation,” insofar as such statements summarize legal conclusions applicable to the offering of the Class B Shares and ADSs, constitute fair and accurate summaries of such legal matters; and the statements in the Prospectus under the headings “Business—Intellectual Property,” “Business—Information Technology,” “Business—Legal Proceedings,” “Regulation,” “Description of Share Capital,” “Description of the Share Lending Arrangements” and “Description of American Depositary Shares” in the Documento de Registro (as of its date) in Sections 2, 5.2, 6, 8, 10, 11, 19, 20, 21 and 22, and in the Nota sobre las Acciones (as of its date) in Sections 3.3, 4, 5, 6, 7.3, 10.2, 10.3, 11.1 and 11.3, insofar as such statements summarize legal matters, agreements, documents or affecting proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(ix) this Underwriting Agreement has been duly authorized, executed and delivered by the general affairsCompany;
(x) the agency agreement entered into by the Company with [·] (the “Agency Agreement”) has been duly authorized, management, financial position, stockholders’ equity or results of operations of executed and delivered by the Company and its subsidiariesthe obligations assumed thereunder by the Company are legal, otherwise than valid, binding and enforceable obligations of the Company;
(xi) the Stock Loan Agreement has been duly authorized, executed and delivered by Inversión Corporativa IC, S.A. and the obligations assumed thereunder by Inversión Corporativa IC, S.A. are legal, valid, binding and enforceable obligations of Inversión Corporativa IC, S.A.;
(xii) the Lock-Up Agreements have been duly authorized, executed and delivered by the Lock-Up Agreement Signatories;
(xiii) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as set forth described in the Prospectus, will not be, an “investment company” as defined in the Investment Company Act of 1940, as amended;
(xiv) no consent, approval, authorization, filing with or order of any Spanish, U.S. Federal or New York court or governmental agency or body is required in connection with the transactions contemplated in the Pricing Prospectus, the effect of whichUnderwriting Agreement, in any such case described in clause (i) the Deposit Agreement or (ii), is in the judgment Stock Loan Agreement, except (A) such as have been obtained under the Act and the Spanish Capital Companies Act, (B) such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with Offered Shares by the public offering or the delivery of the Notes on the terms and Underwriters in the manner contemplated in this Underwriting Agreement, in the Pricing Disclosure Package or and the Prospectus.
, (gC) The Company shall have complied the registration of the Nota sobre las Acciones and complementary documentation with the provisions CNMV, (D) the formalization of the first sentence capital increase by means of Section 5(A)(d) hereof with respect to a public deed granted before a Spanish notary public, the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined filing by the Commission for purposes Company with the relevant Spanish tax authorities as exempt from capital tax (Impuesto sobre Transmisiones Patrimoniales y Actos Jurídicos Documentados en su modalidad de Operaciones Societarias) and the registration of Rule 436(g)(2such public deed with the Mercantile Registry, (E) under the Actregistration of the Offered Shares with Iberclear and the verification of the listing of the Offered Shares by the CNMV, (F) the approval of the listing of the Offered Shares by the relevant managing entities (Sociedades Rectoras) of each of the Madrid and Barcelona Stock Exchanges, and (iiG) no such organization shall have publicly announced that it has under surveillancethe approval of the admission of the Offered Shares to trading through the SIB by the CNMV;
(xv) none of the issue and sale of the Offered Shares, outlook, watch or review, with possible negative implications, its rating the consummation of any other of the Company’s debt securities transactions contemplated herein, in the Deposit Agreement or preferred stock.
(i) On or after in the Applicable Time there shall not have occurred any Stock Loan Agreement and the fulfillment of the following: terms hereof, of the Deposit Agreement or of the Stock Loan Agreement, will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its subsidiaries pursuant to, (iA) a suspension the charter or material limitation in trading in securities generally by-laws of the Company or its subsidiaries, (B) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument [identified on the New York Stock Exchange; annexed schedule] to which the Company or its subsidiaries is a party or bound or to which its or their property is subject, or (iiC) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either any Spanish, U.S. Federal or New York state statute, law, rule, regulation, judgment, order or Georgia authorities decree applicable to the Company or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence its subsidiaries of any Spanish, U.S. Federal or New York court, regulatory body, administrative agency, governmental body, arbitrator or other calamity authority having jurisdiction over the Company or crisis its subsidiaries or any change in financial, political of its or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.their properties;
(jxvi) The Company shall have furnished or caused to be furnished to you at the Time no holders of Delivery certificates of officers securities of the Company and trustees satisfactory to you as have rights to the accuracy registration of such securities under the representations Registration Statement or the ADR Registration Statement;
(xvii) the Deposit Agreement has been duly authorized, executed and warranties of delivered by the Company herein at and as of such timeconstitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to the performance by the Company enforcement of all of its respective obligations hereunder remedies, to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.
Appears in 2 contracts
Sources: Underwriting Agreement (Abengoa Sa), Underwriting Agreement (Abengoa Sa)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes shall be subject subject, in the discretion of the Representatives, to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and the Closing Date, to the accuracy of the statements of the Company Company’s officers on and as of the Closing Date made in any certificates given pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereof; all filings (including, without limitation, the final term sheet contemplated Final Term Sheet) required by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) 433 under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for made, and no such filings by Rule 433shall have been made without the consent of the Representatives; no stop order suspending the effectiveness of the Registration Statement or any part thereof or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and Commission; no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have has been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened received by the CommissionCompany; and all requests for additional information on the part of the Commission shall have been complied with to your the Representatives’ reasonable satisfaction.
(b) King & Spalding LLP, counsel for the Company, The Representatives shall have be furnished to the Underwriters an opinion or with opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorizedof , executed Vice President and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement [Deputy] General Counsel of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of that address substantially the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amendedExhibit A, and regulations or legal conclusions with respect thereto▇▇▇▇▇ Day, constitute accurate summaries of Chicago, Illinois, counsel for the Company, that address substantially the matters set forth therein in all material respectsExhibit B.
(c) The Representatives shall have received from , counsel for the Underwriters, such opinion or opinions dated the Closing Date with respect to such matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(cd) The Company shall have furnished to the Underwriters an opinionRepresentatives a certificate of the President or any Vice President of the Company, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, as to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as matters set forth in the Prospectus, paragraphs (a) and all (h) of the issued shares of capital stock of the Company have been duly this Section 7 and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any further effect that the signers of its subsidiaries, would individually or in such certificate have examined the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments this Agreement and supplements theretothat, as applicable, made by to the best of his or her knowledge:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Time Closing Date; and
(ii) there has been no material adverse change in the condition of Delivery (other than the Company and its subsidiaries taken as a whole, financial statements or otherwise, or in the earnings, affairs or business prospects of the Company and related schedules and other financial information contained therein and any Form T-1 Statements its subsidiaries taken as a whole, whether or not arising in the ordinary course of Eligibility and Qualification filed as exhibits to business, from that set forth or contemplated by the Registration Statement, the most recent Preliminary Prospectus, or Prospectus.
(e) The Representatives shall have received letters from Deloitte & Touche LLP, independent public accountants for the Company (dated the date of this Agreement and Closing Date, respectively, and in form and substance satisfactory to the Representatives) advising that (i) they are an independent registered public accounting firm with respect to the Company as to which such counsel need express no required by the Act and published rules and regulations of the Commission thereunder, (ii) in their opinion) , the consolidated financial statements and supplemental schedules included or incorporated by reference in the Registration Statement, the most recent Preliminary Prospectus or Prospectus and covered by their opinion filed with the Commission under Section 13 of the Exchange Act comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the published rules and regulations of the Commission thereunder; and
, (xiii) The documents that they have performed limited procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company, a reading of the minutes of meetings of the Board of Directors, committees thereof, and of the shareholder of the Company since the date of the most recent audited financial statements included or incorporated by reference in the most recent Preliminary Prospectus or any further amendment or supplement thereto made by Prospectus, inquiries of officials of the Company prior responsible for financial accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such limited review and procedures nothing came to the Time of Delivery their attention that caused them to believe that: (other than the A) any material modifications should be made to any unaudited consolidated financial statements and related schedules and other of the Company included or incorporated by reference in the Registration Statement, the most recent Preliminary Prospectus or Prospectus for them to be in conformity with generally accepted accounting principles or any unaudited consolidated financial information contained thereinstatements of the Company included or incorporated by reference in the Registration Statement, as to which such counsel need express no opinion), when they became effective the most recent Preliminary Prospectus or were filed with the Commission, as the case may be, complied Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In additionapplicable to Form 10-Q; and (B) with respect to the period subsequent to the date of the most recent financial statements included or incorporated by reference in the most recent Preliminary Prospectus or Prospectus and except as set forth in or contemplated by the Registration Statement the most recent Preliminary Prospectus or Prospectus, although such counsel need there were any adverse changes, at a specified date not pass upon more than three business days prior to the date of the letter, in the capital stock of the Company or assume increases in long-term debt of the Company on a consolidated basis as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated by reference in the most recent Preliminary Prospectus or Prospectus, or as of there were any responsibility decreases in stockholders’ equity or net current assets of the Company on a consolidated basis as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated by reference in the Prospectus for the accuracy, completeness or fairness period from the date of the most recent financial statements contained included or incorporated by reference in the Prospectus to there were any decreases, as compared with the corresponding period in the preceding year, in operating revenues, operating income or net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; and (iv) they have carried out specified procedures performed for the purpose of comparing certain specified financial information and percentages (which is limited to financial information derived from general accounting records of the Company or, to the extent not so derived, from schedules prepared by Company officers responsible for such accounting records) included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package most recent Preliminary Prospectus and Prospectus with indicated amounts in the financial statements or accounting records of the Company and (excluding any questions of legal interpretation) have found such information and percentages to be in agreement with the relevant accounting and financial information of the Company referred to in such letter in the description of the procedures performed by them.
(f) Subsequent to the respective dates as of which information is given in the Registration Statement and the most recent Preliminary Prospectus, there shall not have been any adverse change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 7 which is so material and adverse as to make it impractical or inadvisable in the judgment of the Representatives to proceed with the public offering or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part delivery of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary Notes on the terms and in order to make the statements therein not misleading;
(2) manner contemplated by the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;.
(3g) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment Subsequent to the Registration Statement is required to be filed or that there are any contracts or other documents execution and delivery of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except thatthis Agreement, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters no downgrading shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel occurred in the rating accorded the Notes or any other debt securities or preferred stock of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as such term is defined by the Commission for purposes of Rule 436(g)(2) under the Act (other than downgrades of debt securities issued on behalf of governmental entities for the Underwriters, benefit of the Company solely as a result of downgrades of ratings of any third parties insuring such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (isecurities) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP no such organization shall have furnished to you a letter publicly announced that it has under surveillance or lettersreview, dated the respective dates of delivery thereofor has changed its outlook with respect to, in form and substance satisfactory to you, to the effect set forth in Annex I (a form its rating of the executed copy Notes or of any other debt securities or preferred stock of or guaranteed by the Company (other than an announcement with positive implications of a possible upgrading and other than with respect to debt securities issued by or on behalf of governmental entities for the benefit of the letter to be delivered prior to the execution of this Agreement is attached Company solely as Annex I(a) and a form of the executed letter to be delivered on the effective date result of any post-effective amendment such announcement with respect to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)third parties insuring such debt securities).
(fh) Neither the Company nor any of its Significant Subsidiaries shall have subsidiaries (i) shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing most recent Preliminary Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or court or governmental action, order or decreedecree of any court, arbitrator or governmental or regulatory authority, otherwise than as set forth or contemplated in the Pricing most recent Preliminary Prospectus, and (ii) shall have incurred, since the respective dates as date of which information is given this Agreement, any liabilities or obligations, direct or contingent, or entered into any transactions, not in the Pricing Prospectus ordinary course of business, which are material to the Company and its subsidiaries taken as a whole, and there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries taken as a whole or any change, or any development involving a prospective change, in or affecting the general affairs, management, business, financial position, stockholders’ equity or stockholder’s equity, results of operations or prospects of the Company and its subsidiaries, subsidiaries taken as a whole otherwise than as set forth or contemplated in the Pricing most recent Preliminary Prospectus, the effect of which, in any such case described in clause (i) or (ii), ) above is in the judgment of the Representatives Underwriters so material and adverse as to make it impracticable or inadvisable to proceed with the public offering offering, sale or the delivery of the Notes on the terms and in the manner contemplated in by this Agreement and the Prospectus.
(i) No Representative shall have advised the Company that the Registration Statement, the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions , or any amendment or supplement thereto, contains an untrue statement of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred fact which in the rating accorded opinion of counsel for the Company’s debt securities Underwriters is material or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) omits to state a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading fact which in the Company’s securities on opinion of counsel for the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal Underwriters is material and is required to be stated therein or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in is necessary to make the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectusstatements therein not misleading.
(j) The No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Notes; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Notes.
(k) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Indenture and this Agreement and the transactions contemplated hereby shall be reasonably satisfactory to counsel to the Underwriters, and prior to the Closing Date, the Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to Representatives such other matters customary information, certificates and documents as you they may reasonably request.
(l) The Company and Trustee shall have entered into the supplemental indenture relating to the Notes, and the Representatives shall have received counterparts, conformed as executed thereof, and the Notes shall have been duly executed and delivered by the Company and authenticated by the Trustee. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be satisfactory in form and substance to the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing, or by telephone or facsimile transmission confirmed in writing.
Appears in 2 contracts
Sources: Underwriting Agreement (Xcel Energy Inc), Underwriting Agreement (Xcel Energy Inc)
Conditions to the Obligations of the Underwriters. The ------------------------------------------------- obligations of the several Underwriters to purchase the Notes under this Agreement shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein set forth as of the Applicable Time, the date hereof and the as of each Closing Date, to the accuracy of the statements of the Company Company's officers made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder hereunder, and to the following additional conditions, unless waived in writing by the Representative:
(a) The Prospectus Registration Statement shall have been filed with declared effective by the Commission pursuant to Rule Commission; all filings required by Rules 424(b) and 430A under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433timely made; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding by the Commission or any state securities commission nor, to the knowledge of the Company, shall any proceedings for that purpose shall have been initiated or threatened by the Commission threatened; and no notice of objection any request of the Commission to the use or any state securities commission for inclusion of additional information in the Registration Statement Statement, or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission otherwise, shall have been complied with to your the reasonable satisfactionsatisfaction of the Representative.
(b) King & Spalding LLP, counsel for Since the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, dates as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries information is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained given in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause : (i) abovethere shall not have occurred any change or development involving, such counsel need or which would be reasonably expected to involve, a Material Adverse Effect, whether or not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received arising from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for transactions in the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates ordinary course of such entities business; and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor shall not have sustained any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any material loss or interference with its business from any labor dispute, strike, fire, explosionflood, flood windstorm, accident or other calamity, calamity (whether or not covered by insurance, insured) or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of whichwhich on the Company, in any such case described in clause (i) or (ii)) above, is is, in the judgment sole discretion of the Representatives Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes Shares on the terms and in the manner contemplated in the Pricing Disclosure Package or Registration Statement and the Prospectus.
(gc) The Representative shall not have been advised that the Registration Statement or the Prospectus contains an untrue statement of fact that, in the opinion of the Representative or counsel to the Underwriters, is material, or omits to state a fact that, in the opinion of the Representative or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(d) The Representative shall have received an opinion of Bartlit ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, addressed to the Representative, in its capacity as the Representative of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that, subject to customary qualifications and assumptions:
(i) The Company shall is validly existing as a corporation and in good standing under the laws of its jurisdiction of incorporation, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement;
(ii) the Company is duly registered and qualified to do business as a foreign corporation under the laws of, and is in good standing as such in the States of Ohio and California;
(iii) the authorized capital stock of the Company consists of 150,000,000 shares of Class A Common Stock, par value $0.0001 per share, and 50,000,000 shares of Class B Common Stock, par value $0.0001 per share, and 50,000,000 shares of preferred stock, par value $0.0001 per Share, and all such stock conforms in all material respects to the descriptions thereof in the Prospectus and the Registration Statement;
(iv) the issued and outstanding shares of capital stock of the Company immediately prior to the issuance and sale of the Shares to be sold by the Company hereunder have complied been duly authorized and validly issued, are fully paid and nonassessable, and there are no preemptive rights to subscribe for or purchase any shares of capital stock of the Company, and no shares of capital stock of the Company have been issued in violation of such rights;
(v) to such counsel's knowledge, except for the Subsidiaries, the Company has no significant subsidiaries, and the Company does not own any equity interest in or control, directly or indirectly, any other corporation, limited liability company, partnership, joint venture, association, trust or other business organization except as described in the Prospectus and the Registration Statement; each Subsidiary is validly existing in good standing under the laws of its jurisdiction of incorporation or formation, with full power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; Gaiam Catalog, Inc. is duly registered or qualified to do business as a foreign entity under the laws of, and is in good standing as such in the State of Ohio; the issued and outstanding shares of the capital stock or other equity of each Subsidiary have been duly authorized and validly issued, are fully paid and nonassessable and there are no preemptive rights to subscribe for or purchase any shares of capital stock of or other equity interest in any Subsidiary, and no shares of capital stock or other equity interest of any Subsidiary have been issued in violation of such rights; the Company owns directly and beneficially all of the issued and outstanding capital stock or other equity of each Subsidiary except as otherwise described in the Registration Statement, free and clear of any and all liens, claims, encumbrances and security interests except as described in the Registration Statement;
(vi) the certificates for the Shares to be delivered hereunder are in due and proper form and conform to the requirements of applicable law, and, when duly countersigned by the Company's transfer agent, and delivered to the Representative or upon the order of the Representative against payment of the agreed consideration therefor in accordance with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement., the Shares to be sold by the Company represented thereby will be duly authorized and validly issued, fully paid and nonassessable, and free of any preemptive rights to subscribe for or purchase shares of Common Stock;
(hvii) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) Registration Statement has become effective under the Act, and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or are threatened under the Act or any Blue Sky Laws; the Registration Statement and the Prospectus and any amendment or supplement thereto (iiexcept for the financial statements and other statistical or financial data included therein, as to which such counsel need express no opinion), comply as to form in all material respects with the requirements of the Act, including Form S-1 promulgated under the Act;
(viii) no such organization shall have publicly announced that it the Company has under surveillance, outlook, watch or review, with possible negative implications, its rating of any the corporate power and authority to enter into and perform this Agreement; the performance of the Company’s debt securities or preferred stock.
(i) On or after 's obligations hereunder and the Applicable Time there shall not have occurred any consummation of the following: (i) a suspension or material limitation in trading in securities generally transactions described herein have been duly authorized by the Company by all necessary corporate action, and this Agreement has been duly executed and delivered by and on the New York Stock Exchange; (ii) a suspension or material limitation in trading in behalf of the Company’s securities on , and is a legal, valid and binding agreement of the New York Stock ExchangeCompany enforceable against the Company in accordance with its terms; (iii) a general moratorium on commercial banking activities declared by either Federal no consent, approval, authorization or New York other order or Georgia authorities decree of any court, regulatory or a material disruption in commercial banking governmental body, arbitrator, administrative agency or securities settlement or clearance services in the United States; (iv) the outbreak or escalation other instrumentality of hostilities involving the United States or of the declaration State of Colorado is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements by the United States NASD);
(ix) the execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or By-laws (or equivalents thereto) of the Company or any Subsidiary; (B) or result in the breach, modification or termination of, or constitute a national emergency default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or war other instrument to which the Company or any Subsidiary is a party or by which the Company or such Subsidiary, or any of their respective owned or leased property is bound, and which is filed as an exhibit to the Registration Statement; or (vC) the occurrence violate any statute, ordinance, rule, or regulation of any regulatory or governmental body, or to such counsel's knowledge, any order or decree of any court, arbitrator, administrative agency or other calamity or crisis or any change in financial, political or economic conditions in instrumentality of the United States or elsewhereof the State of Colorado (assuming compliance with all applicable federal and state securities laws);
(x) to such counsel's knowledge, if the effect of any such event specified in clause (iv) or (v) except as described in the judgment Prospectus, there are no holders of Common Stock or other securities of the Representatives makes it impracticable Company, or inadvisable securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to proceed the registration of such securities;
(xi) the Class A Common Stock (including the Shares) has been designated for inclusion as a National Market security on The Nasdaq Stock Market and is registered under the Exchange Act;
(xii) neither the Company nor any Subsidiary is, nor with the public offering giving of notice or the delivery passage of the Notes on the terms and time or both would be, in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all violation of its respective obligations hereunder to be performed at Articles of Incorporation or prior By-laws (or their equivalents) or, to such timecounsel's knowledge, in default in any material respect in the performance of any agreement, lease, franchise, license, permit, mortgage, deed of trust, evidence of indebtedness or other instrument, or any other document in each case that is filed as an exhibit to or incorporated by reference in the matters set forth in subsections (a) and (f) of this Section and as Registration Statement, to such other matters as you may reasonably request.which the Company or any Subsidiary is subject or bound;
Appears in 2 contracts
Sources: Underwriting Agreement (Gaiam Inc), Underwriting Agreement (Gaiam Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters Underwriters, as to purchase Securities to be purchased at the Notes Time of Delivery, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and at and as of the Closing DateTime of Delivery, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof5(a)(i); the final term sheet contemplated by Section 5(A)(a) hereof5(a)(i), and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.;
(b) King & Spalding LLP[ ], counsel for the CompanyUnderwriters, shall have furnished to the Underwriters an you such written opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements thereinDelivery, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date form and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits substance satisfactory to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Dateyou, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP , and such counsel shall have received such papers and information as they may rely reasonably request to enable them to pass upon such matters;
(ic) The Company’s General Counsel or such other internal counsel as to those matters that relate shall be reasonably acceptable to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP Underwriters shall have furnished to you a letter or letterssuch counsel’s written opinion, to the effect set forth in Exhibit A, dated the respective dates Time of delivery thereofDelivery, in form and substance satisfactory to you;
(d) ▇▇▇▇▇▇▇ LLP, Maryland counsel for the Company, shall have furnished to you their written opinion, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration StatementExhibit B, and as of dated the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, form and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees substance satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.you;
Appears in 2 contracts
Sources: Underwriting Agreement (Huntington Bancshares Inc/Md), Underwriting Agreement (Huntington Bancshares Inc/Md)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Offered Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein in this Underwriting Agreement as of the Applicable Time, the date hereof Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder under this Underwriting Agreement and to the following additional conditions:
(a) The Prospectus closing of the offering of the Offered Shares shall have occurred prior to or simultaneously with the closing of the offering of the Offered Notes.
(b) The Prospectus, and any supplement thereto, shall have been filed with in the Commission pursuant to manner and within the time period required by Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof); [the final term sheet contemplated by Section 5(A)(a5(b) hereof, and hereto and] any other [other] material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or any part thereof notice objecting to their use shall have been issued and no proceeding proceedings for that purpose shall have been initiated instituted or threatened threatened, and the Folleto has been filed in the manner and within the time period established by the Commission Spanish Act as developed by secondary legislation and no notice of objection stop order suspending the effectiveness of the Commission Folleto or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(c) KPMG Auditores, S.L. (“KPMG”) has issued by not later than 11:59 p.m. (Madrid time) on the date hereof its special report for the purposes of articles 417 and 511 of the Spanish Capital Companies Act confirming the fairness of the Offered Notes’ conversion ratio and its adjustment provisions and that the [figures] contained in the report of the Board of Directors of the Company on the terms of conversion are, in their view, reasonable.
(d) The Company shall have requested and caused DLA Piper Spain, S.L.U. and DLA Piper LLP (US), counsel for the Company with respect to Spanish and U.S. law, respectively, to have furnished to the use Representatives their opinion or opinions, as the case may be, dated the Closing Date and addressed to the Representatives, to the effect that (subject to assumptions and qualifications reasonably acceptable to the Representatives):
(i) the Registration Statement and the ADR Registration Statement have 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 or the ADR Registration Statement or any post-effective amendment thereto pursuant notice objecting to Rule 401(g)(2) under the Act shall their use has been issued, no proceedings for that purpose have been received; no stop order suspending instituted or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generallythreatened, and the effects of general principles of equity; Registration Statement and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package ADR Registration Statement and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial and statistical information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statementtherein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Trust Indenture Act and the respective rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of that on the Effective Date or the date the Registration Statement, as of its effective date, Statement was last deemed amended the Registration Statement or the ADR Registration Statement contained an any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleadingmisleading or that the Prospectus as of the date thereof and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(2ii) such counsel has no reason to believe that the Pricing Disclosure Package, as of amended or supplemented at the Applicable Execution Time, contained an any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion);
(3iii) the ProspectusDocumento de Registro was approved and registered by the CNMV pursuant to the Spanish Act on July 12, 2012, the Company filed with the CNMV the Relevant Fact Notice on the details of the Offering on [·], the Nota sobre las Acciones was approved and registered by the CNMV pursuant to the Spanish Act on [·]; to the knowledge of such counsel, no stop order suspending the effectiveness of the Folleto has been issued, no proceedings for that purpose have been instituted or threatened and the Folleto (other than the financial statements and other financial and statistical information contained therein, as of its date and to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Spanish Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date hereof, the Folleto was last deemed amended the Spanish Documents contained or contains an any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Folleto as of the date thereof and on the Closing Date included or include any untrue statement of a material fact or omitted or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
misleading (4) any amendment to the Registration Statement is required to be filed or that there are any contracts or in each case, other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to than the financial statements and related schedules and other financial and statistical information contained therein, and with respect as to clause (i) above, which such counsel need not express a belief with respect to any Form T-1.no opinion);
(div) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for each of the Underwriters, such opinion Company and the Specified Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or opinions, dated the Closing Dateorganized, with respect full corporate power and authority to such matters own or lease, as the Underwriters case may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely be, and to operate its properties and conduct its business as described in the Disclosure Package, the Prospectus and the Documento de Registro (ias of its date), and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification except where the failure to be so qualified or in good standing would not have a Material Adverse Effect;
(v) as to those matters that relate to the Indenture Trusteebest of our knowledge, upon the certificate Company is not the subject of any bankruptcy or certificates insolvency proceeding of such entities any nature and no steps have been taken for its liquidation, dissolution, declaration of insolvency (ii“concurso”) or analogous circumstance under the laws of Spain and no liquidator, administrator, receiver or analogous person has been appointed over all or any of the assets of the Company;
(vi) each of the Lock-Up Agreement Signatories (as hereinafter defined) that is a corporate entity has been duly incorporated and is validly existing as a [corporation] in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to matters governed by Georgia Lawenter into the Lock-Up Agreement, upon and each of the opinion Lock-Up Agreement Signatories that is an individual has due authority to enter into the Lock-Up Agreement;
(vii) all the outstanding shares of King & Spalding LLP capital stock of each Specified Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Disclosure Package and the opinion Prospectus, all outstanding shares of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) capital stock of each such Specified Subsidiary are owned by the Company either directly or through wholly owned subsidiaries free and 6(c), respectively.
(e) At the Applicable Time and at the Time clear of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to youany perfected security interest or, to the effect knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(viii) the Company’s authorized share capital is as set forth in Annex I (a form the Disclosure Package, the Prospectus and the Spanish Documents; the capital stock of the executed copy Company conforms in all material respects to the description thereof contained in the Disclosure Package, the Prospectus and the Spanish Documents; the outstanding Class A Shares and Class B Shares have been duly and validly authorized and issued and are fully paid and nonassessable; the Underlying Shares issuable or deliverable upon conversion of the letter Offered Notes have been duly and validly authorized and, when issued and/or delivered upon conversion of the Offered Notes and, if any of the Underlying Shares are new Class B Shares, when the capital increase relating to such new Class B Shares has been duly registered with the Mercantile Registry and such new Class B Shares have been duly registered with Iberclear, the Underlying Shares will be delivered prior validly issued, fully paid and nonassessable; the Underlying Shares will conform in all material respects to the execution of this Agreement is attached as Annex I(a) and a form description of the executed letter to be delivered on the effective date of any post-effective amendment to Class B Shares contained in the Registration Statement, the ADR Registration Statement, the Disclosure Package, the Prospectus and as the Spanish Documents; the Board of Directors of the Time Company has duly and validly adopted resolutions reserving the maximum number of DeliveryUnderlying Shares for issuance upon conversion of the Offered Notes, is attached authorizing the application for listing of such Underlying Shares on the Madrid and Barcelona Stock Exchanges and authorizing the application for listing of the related ADSs on the Nasdaq Global Select Market; the holders of outstanding shares of capital stock of the Company and of bonds convertible into Class A Shares or Class B Shares of the Company are not entitled to preemptive or other rights to subscribe for the Offered Notes or the Underlying Shares other than those as Annex I(b)).have been duly excluded in accordance with Spanish law; except as set forth in the Disclosure Package, the Prospectus and the Spanish Documents, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding and there are no commitments by the Company to create, issue, sell or otherwise dispose of, shares of capital stock of or ownership interests in the Company; there are no restrictions on the free transferability of the Underlying Shares set out in the constitutional documents of the Company or under Spanish law or regulation; there are no restrictions on subsequent transfers of the Underlying Shares; and, the Offered Notes have been approved for listing on the Nasdaq Global Select Market subject to official notice for issuance;
(fix) Neither the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company nor any in accordance with its terms (subject, as to enforcement of its Significant Subsidiaries shall have (iremedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law) sustained since and the date Offered Notes will be convertible into Class B Shares or ADSs, as applicable, in accordance with the terms of the latest audited financial Indenture; and the Offered Notes have been duly and validly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Underwriting Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture; and the statements included or incorporated by reference set forth under the headings “Description of the Notes,” “Description of American Depositary Shares” and “Description of Share Capital” in the Pricing Prospectus Disclosure Package and the Final Prospectus, insofar as such statements purport to summarize certain provisions of the Offered Notes, the Indenture, the Class B Shares and the ADSs, provide a fair summary of such provisions;
(x) the Company’s obligations under the Offered Notes (other than to pay interest, including optionally outstanding payments as described in the Disclosure Package and the Prospectus) constitute direct, unsecured and subordinated obligations of the Company and the Offered Notes will rank at all times pari passu without any loss preference or interference priority among themselves and will (subject to such exceptions as are from time to time mandatory under Spanish law) rank (a) senior in priority only to the rights and claims against the Company of the holders of “junior securities;” (b) pari passu with its business from firethe rights and claims against the Company of the holders of any “parity securities;” and (c) junior to the rights and claims against the Company of the Company’s “senior creditors,” each as defined under the caption “Description of the Notes—Ranking” in the Disclosure Package and the Prospectus. However, explosionthe Company’s obligations under the Offered Notes to pay interest, flood including “optionally outstanding payments” (as defined in the Disclosure Package and the Prospectus), will be the Company’s unsecured, unsubordinated obligations and rank pari passu with all the Company’s other unsecured, unsubordinated obligations;
(xi) insofar as matters of Spanish law, United States Federal law and New York State law are concerned, to the knowledge of such counsel, there is no pending or other calamitythreatened action, whether suit or not covered proceeding by insurance, or from before any labor dispute or court or governmental actionagency, order authority or decree, otherwise than as set forth body or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of arbitrator involving the Company or any of its subsidiaries or any changeits or their property of a character required to be disclosed in the Registration Statement, the ADR Registration Statement or the Spanish Documents which is not adequately disclosed in the Disclosure Package, the Prospectus and the Spanish Documents, and there is no franchise, contract or other document of a character required to be described in the Registration Statement, the ADR Registration Statement, the Disclosure Package, the Prospectus or the Spanish Documents, or any development involving a prospective changeto be filed as an exhibit thereto, which is not described or filed as required; the descriptions contained in the Prospectus under the heading “Taxation,” insofar as such statements summarize the legal conclusions applicable to the offering of the Offered Notes and the Underlying Shares, constitute fair and accurate summaries of such legal matters; and the statements in the Prospectus under the headings “Business—Intellectual Property,” “Business—Information Technology,” “Business—Legal Proceedings,” “Regulation,” “Description of Share Capital,” “Description of American Depositary Shares,” “Description of the Notes” and “Description of the Share Lending Agreements” in the Documento de Registro (as of its date) in Sections 2, 5.2, 6, 8, 10, 11, 19, 20, 21 and 22, and in the Nota sobre las Acciones (as of its date) in Sections 3.3, 4, 5, 6, 7.3, 10.2, 10.3, 11.1 and 11.3, insofar as such statements summarize legal matters, agreements, documents or affecting proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(xii) this Underwriting Agreement has been duly authorized, executed and delivered by the general affairsCompany;
(xiii) the Stock Loan Agreements have been duly authorized, management, financial position, stockholders’ equity or results of operations of executed and delivered by the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined obligations assumed thereunder by the Commission for purposes of Rule 436(g)(2) under the ActCompany are legal, valid, binding and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any enforceable obligations of the Company’s debt securities or preferred stock.;
(ixiv) On or the Lock-Up Agreements have been duly authorized, executed and delivered by the Lock-Up Agreement Signatories;
(xv) the Company is not and, after giving effect to the Applicable Time there shall not have occurred any offering and sale of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.Securiti
Appears in 2 contracts
Sources: Underwriting Agreement (Abengoa Sa), Underwriting Agreement (Abengoa Sa)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Republic made in any certificates pursuant to the provisions hereof, to the performance by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereofof this Agreement; the and any final term sheet contemplated by Section 5(A)(a4(a) hereof, and any other material required to be filed by the Company Republic pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for The Head or Acting Head of the Company, Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Underwriters an opinion or opinionsRepresentatives such counsel’s written opinion, dated the Closing Date, to the effect that:
(i) This Agreement The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly Republic and validly authorizedthe Agreements constitute legal, executed and delivered by the Company and constitutes a valid and binding agreement obligations of the Company, Republic enforceable in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iiiiv) The issuance, execution and delivery of the Notes Securities have been duly and validly authorized by the Company and, when authenticated by the Indenture Trusteeauthorized, executed, issued and delivered by the Republic in accordance with the manner provided in Indenture, and, assuming due authentication and delivery by the Indenture will Trustee, the Securities constitute legal, valid and binding obligations of the Company, Republic enforceable in accordance with their terms entitled to the benefits of provided by the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equityIndenture;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries Securities) of the matters set forth therein Republic that will rank without any preference among themselves and equal in right of payment with all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel other present and future unsecured and unsubordinated External Indebtedness of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersRepublic;
(vi) The There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of this Agreementany of the Agreements, the issuance and sale issue of the Notes, and the consummation of the transactions and performance of the obligations Securities as contemplated herein and therein contemplated will not conflict with in the Prospectus, or result in a breach the performance or violation observance by the Republic of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Agreements or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesSecurities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the issuance due execution, delivery and sale performance by the Republic of any of the Notes Agreements or the consummation by Securities, (B) the Company validity or enforceability against the Republic of any of the transactions contemplated by this AgreementAgreements or the Securities, or (C) the issue, sale or delivery of the Securities, except such as have been obtained under for, (I) the Act and such consentsrelevant portions of Law 80 of October 28, approvals1993, authorizations(II) the surviving portions of Law 185 of January 27, registrations 1995 which were not repealed or qualifications as may be required under state securities or Blue Sky laws amended by Law 533 of November 11, 1999 (III) Law 533 of November 11, 1999, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Law 1624 of April 29, 2013, (VII) Law 1771 of December 30, 2015, (VIII) Law 2073 of December 31, 2020, (IX) Decree No. 1068 of May 26, 2015, (X) CONPES Document No. 4108 Departamento Nacional de Planeación, Ministerio de Hacienda y Crédito Público, dated November 22, 2022; (XI) evidence of publication of this Agreement in connection with the purchase and distribution Sistema Electrónico de Contratación Pública SECOP of the Notes Republic, (XII) Authorization by Act of the UnderwritersComisión Interparlamentaria de Crédito Público adopted in its meeting held on June 14, 2023 and (XIII) Resolution No. 2803 dated November 7, 2023 of the Ministerio de Hacienda y Crédito Público (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) The Company To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not andnecessary that any Agreement or the Securities be registered, after giving effect recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General or Acting Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of Resolution No. 2803 dated November 7, 2023 issued by Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic, (B) filing of information before the Colombian Central Bank (Banco de la República) of public external indebtedness report on Form No. 6 (Formulario 6), resulting from the issuance of the Securities under the Indenture and (C) the publication of this Agreement in the Sistema Electrónico de Contratación Pública-SECOP of the Republic, to satisfy the requirement for such publications, each of which shall be effected on or prior to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amendedClosing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, subject to the terms, conditions, limitations or exceptions under (i) Articles 192, 195, 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo) as amended by Articles 80, 81 and 87 of Law 2080 of 2021; and (ii) Articles 593, 594 and 595 et al of Law 1564 of 2012 (Código General del Proceso); and Article 19 of Decree 111 of January 15, 1996, pursuant to which the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Indenture and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Indenture and the Securities as provided in Section 15 hereof, Section 9.7(a) of the Indenture and Section 16(a) of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur,” subject to the provisions of (i) Article 605 (et al) of Law 1564 of 2012 (Código General del Proceso), which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic; and (ii) subject to compliance with the provisions of Articles 606 and 607 of Law 1564 of 2012 (Código General del Proceso). The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic other than those governing judicial procedures, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly legalized copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus and any further amendments and supplements theretoProspectus, as applicableamended or supplemented, made and their filing with the Commission have been duly authorized by and on behalf of the Company prior to the Time of Delivery (other than the financial statements Republic, and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements amended, has been duly executed by and on behalf of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicableRepublic, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained information in the Registration Statement, the Pricing Disclosure Package or as amended, and the Prospectus, such counsel shall confirm that he as amended or supplemented, stated on the authority of public officials of the Republic has no reason to believe that:been stated in their official capacities thereunto duly authorized;
(1xvii) each part of The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Indenture, insofar as matters of its effective dateColombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Registration Statement, at the respective times each part became effective, contained 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;
(2B) No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof or on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Pricing Disclosure Package, as of the Applicable Time, contained an any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) . Such counsel may state that he or she is not passing upon and does not assume any responsibility for the Prospectusaccuracy, as of its date and as completeness or fairness of the date hereof, statements contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
Prospectus (4) any amendment except to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect extent expressly set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(axvii) above) and a form that such counsel makes no representation that such counsel has independently verified the accuracy, completeness and fairness of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statementsuch statements (except as aforesaid), and that such counsel’s opinions referred to in this subsection (b) are limited to matters of Colombian law and, insofar as of the Time of Delivery, opinion required by this subsection (b) is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.affecte
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Republic made in any certificates pursuant to the provisions hereof, to the performance by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereofof this Agreement; the and any final term sheet contemplated by Section 5(A)(a4(a) hereof, and any other material required to be filed by the Company Republic pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for The Head or Acting Head of the Company, Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Underwriters an opinion or opinionsRepresentatives such counsel’s written opinion, dated the Closing Date, to the effect that:
(i) This Agreement The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly Republic and validly authorizedthe Agreements constitute legal, executed and delivered by the Company and constitutes a valid and binding agreement obligations of the Company, Republic enforceable in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iiiiv) The issuance, execution and delivery of the Notes Securities have been duly and validly authorized by the Company and, when authenticated by the Indenture Trusteeauthorized, executed, issued and delivered by the Republic in accordance with the manner provided in Indenture, and, assuming due authentication and delivery by the Indenture will Trustee, the Securities constitute legal, valid and binding obligations of the Company, Republic enforceable in accordance with their terms entitled to the benefits of provided by the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equityIndenture;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries Securities) of the matters set forth therein Republic that will rank without any preference among themselves and equal in right of payment with all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel other present and future unsecured and unsubordinated External Indebtedness of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersRepublic;
(vi) The There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of this Agreementany of the Agreements, the issuance and sale issue of the Notes, and the consummation of the transactions and performance of the obligations Securities as contemplated herein and therein contemplated will not conflict with in the Prospectus, or result in a breach the performance or violation observance by the Republic of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Agreements or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesSecurities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the issuance due execution, delivery and sale performance by the Republic of any of the Notes Agreements or the consummation by Securities, (B) the Company validity or enforceability against the Republic of any of the transactions contemplated by this AgreementAgreements or the Securities, or (C) the issue, sale or delivery of the Securities, except such as have been obtained under for, (I) the Act and such consentsrelevant portions of Law 80 of October 28, approvals1993, authorizations(II) the surviving portions of Law 185 of January 27, registrations 1995 which were not repealed or qualifications as may be required under state securities or Blue Sky laws amended by Law 533 of November 11, 1999 (III) Law 533 of November 11, 1999, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Law 1624 of April 29, 2013, (VII) Law 1771 of December 30, 2015, (VIII) Law 2073 of December 31, 2020, (IX) Law 2382 of July 16, 2024, (X) Decree No. 1068 of May 26, 2015, (XI) CONPES Document No. [•] Departamento Nacional de Planeación, Ministerio de Hacienda y Crédito Público, dated [•]; (XII) evidence of publication of this Agreement in connection with the purchase and distribution Sistema Electrónico de Contratación Pública SECOP of the Notes Republic, (XIII) Authorization by Act of the UnderwritersComisión Interparlamentaria de Crédito Público adopted in its meeting held on [•] and (XIV) Resolution No. [•] dated [•] of the Ministerio de Hacienda y Crédito Público (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) The Company To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not andnecessary that any Agreement or the Securities be registered, after giving effect recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General or Acting Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of Resolution No. [•] dated [•] issued by Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic, (B) filing of information before the Colombian Central Bank (Banco de la República) of public external indebtedness report on the relevant “International Indebtedness Granted to Residents Form” (Informe de Crédito Externo Otorgado a Residentes – Extracto de Credito Externo), resulting from the issuance of the Securities under the Indenture and (C) the publication of this Agreement in the Sistema Electrónico de Contratación Pública-SECOP of the Republic, to satisfy the requirement for such publications, each of which shall be effected on or prior to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amendedClosing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, subject to the terms, conditions, limitations or exceptions under (i) Articles 192, 195, 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo) as amended by Articles 80, 81 and 87 of Law 2080 of 2021; and (ii) Articles 593, 594 and 595 et al of Law 1564 of 2012 (Código General del Proceso); and Article 19 of Decree 111 of January 15, 1996, pursuant to which the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Indenture and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Indenture and the Securities as provided in Section 15 hereof, Section 9.7(a) of the Indenture and Section 16(a) of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur,” subject to the provisions of (i) Article 605 (et al) of Law 1564 of 2012 (Código General del Proceso), which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic; and (ii) subject to compliance with the provisions of Articles 606 and 607 of Law 1564 of 2012 (Código General del Proceso). The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic other than those governing judicial procedures, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly legalized copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus and any further amendments and supplements theretoProspectus, as applicableamended or supplemented, made and their filing with the Commission have been duly authorized by and on behalf of the Company prior to the Time of Delivery (other than the financial statements Republic, and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements amended, has been duly executed by and on behalf of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicableRepublic, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained information in the Registration Statement, the Pricing Disclosure Package or as amended, and the Prospectus, such counsel shall confirm that he as amended or supplemented, stated on the authority of public officials of the Republic has no reason to believe that:been stated in their official capacities thereunto duly authorized;
(1xvii) each part of The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Indenture, insofar as matters of its effective dateColombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Registration Statement, at the respective times each part became effective, contained 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;
(2B) No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof or on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Pricing Disclosure Package, as of the Applicable Time, contained an any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) . Such counsel may state that he or she is not passing upon and does not assume any responsibility for the Prospectusaccuracy, as of its date and as completeness or fairness of the date hereof, statements contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
Prospectus (4) any amendment except to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect extent expressly set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(axvii) above) and a form that such counsel makes no representation that such counsel has independently verified the accuracy, completeness and fairness of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statementsuch statements (except as aforesaid), and as of the Time of Delivery, is attached as Annex I(b)).
that such counsel’s opinions referred to in this subsection (fb) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.are lim
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The several obligations of the Underwriters to purchase the Notes shall be hereunder are subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company Westpac Parties and the Issuer Trustee of its their obligations hereunder and to the following additional conditions:
(ai) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under effectiveness of the Act within the applicable time period prescribed for such filing by the rules Registration Statement and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; that no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission SEC; and no notice of objection of the Commission to Preliminary Prospectus and the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as SEC pursuant to Rule 424(b) within the case may be, complied as to form in all material respects with applicable time period prescribed for such filing by the requirements Rules and Regulations under the Securities Act. Any request of the Act or the Exchange Act, as applicable, and the rules and regulations SEC for inclusion of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described additional information in the Registration Statement or the Prospectus shall have been complied with;
(ii) the representations and warranties of the Westpac Parties and the Issuer Trustee contained herein are true and correct on and as of the Closing Date as if made on and as of the Closing Date and the representations and warranties of the Westpac Parties in the Basic Documents will be true and correct on the Closing Date; and each Westpac Party and the Issuer Trustee shall have complied with all agreements and all conditions on its part to be performed or satisfied hereunder and under the Basic Documents to which are not filed each is party, at or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect prior to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.Closing Date;
(diii) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for subsequent to the Underwriters, such opinion or opinions, dated execution and delivery of this Agreement and prior to the Closing Date, with respect to such matters as there shall not have occurred any downgrading of the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates long-term debt of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.Westpac;
(eiv) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated since the respective dates as of delivery thereof, which information is provided in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, the Preliminary Prospectus and as the Prospectus there shall not have been any material adverse change in or affecting the condition (financial or otherwise) or in or affecting the earnings, business or operations of the Time of DeliveryWestpac Parties, is attached taken as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference a whole, in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamityeach case, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decreearising in the ordinary course of business, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) which in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the Closing Date on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.;
(jv) The Company the Representatives shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at received on and as of the Closing Date a certificate of an executive officer of each Westpac Party, with specific knowledge about financial matters of such timeWestpac Party, as satisfactory to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as Representatives to the matters effect set forth in subsections 6(ii) through (aiv);
(vi) Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Australian counsel for Westpac, the Trust Manager and the Servicer, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance satisfactory to the Representatives, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters; on the date hereof and also on the Closing Date;
(vii) the Representatives shall have received on and as of the Closing Date an opinion of [·], counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and other related matters as the Representatives may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(viii) ▇▇▇▇▇ ▇▇▇▇▇ LLP, United States counsel for Westpac and the Trust Manager, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance satisfactory to the Representatives, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(ix) ▇▇▇▇▇ ▇▇▇▇▇ LLP, United States federal income tax counsel for Westpac, the Issuer Trustee and the Trust Manager, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance satisfactory to the Representatives;
(x) [·], Australian counsel for the Issuer Trustee, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance satisfactory to the Representatives, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(xi) [·], United States counsel for the Note Trustee, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance satisfactory to the Representatives, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(xii) [·], counsel for the Interest Rate Swap Provider and Currency Swap Provider, shall have furnished to the Representatives their written opinion in form and substance satisfactory to the Representatives;
(xiii) the Representatives shall have received a letter or letters from each counsel delivering any written opinion to Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“Standard and Poor’s”) and ▇▇▇▇▇’▇ Investors Service, Inc. (f“Moody’s” and together with Standard and Poor’s the “Rating Agencies”) in connection with the transaction described herein which is not otherwise described in this Agreement allowing the Representatives to rely on such opinion as if it were addressed to the Representatives;
(xiv) at the Closing Date, the Notes shall have been rated “AAA” by Standard and Poor’s and “Aaa” by Moody’s as evidenced by letters from the Rating Agencies;
(xv) the Representatives shall have received letters of PricewaterhouseCoopers LLP, one dated the date of the Preliminary Prospectus and one dated the date of the final Prospectus, in form and substance reasonably satisfactory to the Representatives, stating in effect that they have performed certain specified procedures as a result of which they have determined that certain information of an accounting, financial or statistical nature set forth in the Prospectus (and any amendments and supplements thereto), agrees with Westpac’s mortgage loan data files as delivered by the Representatives to PricewaterhouseCoopers LLP, excluding any questions of legal interpretation;
(xvi) the Representatives shall have received on and as of the Closing Date a certificate of an Authorized Officer of the Note Trustee, with specific knowledge about that part of the Registration Statement which constitutes the Statement of Eligibility and Qualification (Form T-1) of this Section the Note Trustee under the Trust Indenture Act, satisfactory to the Representatives to the effect that such part of the Registration Statement complies, or will comply, as the case may be, in all material respects with the Securities Act and the Trust Indenture Act and does not and will not contain any untrue statement of a material act or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(xvii) the execution and delivery by all parties thereto of the Basic Documents on or prior to the Closing Date; and
(xviii) on or prior to the Closing Date the Westpac Parties and the Issuer Trustee shall have furnished to the Representatives such further certificates and documents as to such other matters as you the Representatives may reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement (Westpac Securitisation Management Pty LTD)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Republic made in any certificates pursuant to the provisions hereof, to the performance by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereofof this Agreement; the and any final term sheet contemplated by Section 5(A)(a4(a) hereof, and any other material required to be filed by the Company Republic pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for The Head or Acting Head of the Company, Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Underwriters an opinion or opinionsRepresentatives such counsel’s written opinion, dated the Closing Date, to the effect that:
(i) This Agreement The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly Republic and validly authorizedthe Agreements constitute legal, executed and delivered by the Company and constitutes a valid and binding agreement obligations of the Company, Republic enforceable in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iiiiv) The issuance, execution and delivery of the Notes Securities have been duly and validly authorized by the Company and, when authenticated by the Indenture Trusteeauthorized, executed, issued and delivered by the Republic in accordance with the manner provided in Indenture, and, assuming due authentication and delivery by the Indenture will Trustee, the Securities constitute legal, valid and binding obligations of the Company, Republic enforceable in accordance with their terms entitled to the benefits of provided by the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equityIndenture;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries Securities) of the matters set forth therein Republic that will rank without any preference among themselves and equal in right of payment with all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel other present and future unsecured and unsubordinated External Indebtedness of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersRepublic;
(vi) The There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of this Agreementany of the Agreements, the issuance and sale issue of the Notes, and the consummation of the transactions and performance of the obligations Securities as contemplated herein and therein contemplated will not conflict with in the Prospectus, or result in a breach the performance or violation observance by the Republic of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Agreements or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesSecurities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the issuance due execution, delivery and sale performance by the Republic of any of the Notes Agreements or the consummation Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for, (I) the relevant portions of Law 80 of October 28, 1993, (II) Article 16 of Law 185 of January 27, 1995 amended by Article 13 Law 533 of November 11, 1999 regarding the registration of the indebtedness in the “base única de datos del Ministerio de Hacienda y Crédito Público-Dirección General de Crédito Público.” (III) Legislative Decree 519 of April 5, 2020, (IV) Resolution 1067 of April 29, 2020 (V) Authorization by Minutes of the Comité de Tesorería of the Ministerio de Hacienda y Crédito Público adopted in its meeting held on May 27, 2020; (VI) Approval of the final draft of this Underwriting Agreement by the Company Director General of Public Credit and National Treasury of the transactions contemplated by this AgreementMinisterio de Hacienda y Crédito Público, except such as have been obtained under the Act and such consents(VII) Resolution No. 1197 dated June 1, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution 2020 of the Notes by Ministerio de Hacienda y Crédito Público; and (VIII) evidence of publication of this Agreement in the UnderwritersSistema Eléctronico de Contratación Pública SECOP of the Republic;
(viii) The Company To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not andnecessary that any Agreement or the Securities be registered, after giving effect recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General or Acting Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 1197 dated June 1, 2020 issued by Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) the publication of this Agreement in the Sistema Electrónico de Contratación Pública-SECOP of the Republic, to satisfy the requirement for such publications; (B) filing of information before the Colombian Central Bank (Banco de la República) of public external indebtedness report on Form No. 6 (Formulario 6), resulting from the issuance of the Securities under the Indenture each of which shall be effected on or prior to the offering Closing Date; and sale (C) delivery by the Director General of Public Credit and National Treasury of the Notes Ministerio de Hacienda y Crédito Público of a report detailing the financial conditions and results of this issuance to the Comisión Interparlamentaria de Crédito Público and the application technical secretariat of CONPES within 30 days following the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amendedClosing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, subject to the terms, conditions, limitations or exceptions under (i) Articles 192, 195, 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo); and (ii) Articles 593, 594 and 595 et al of Law 1564 of 2012 (Código General del Proceso); and Article 19 of Decree 111 of January 15, 1996, pursuant to which the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Indenture and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Indenture and the Securities as provided in Section 15 hereof, Section 9.7(a) of the Indenture and Section 16(a) of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur,” subject to the provisions of (i) Article 605 (et al) of Law 1564 of 2012 (Código General del Proceso), which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic; and (ii) subject to compliance with the provisions of Articles 606 and 607 of Law 1564 of 2012 (Código General del Proceso). The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic other than those governing judicial procedures, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly legalized copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus and any further amendments and supplements theretoProspectus, as applicableamended or supplemented, made and their filing with the Commission have been duly authorized by and on behalf of the Company prior to the Time of Delivery (other than the financial statements Republic, and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements amended, has been duly executed by and on behalf of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicableRepublic, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained information in the Registration Statement, the Pricing Disclosure Package or as amended, and the Prospectus, such counsel shall confirm that he as amended or supplemented, stated on the authority of public officials of the Republic has no reason to believe that:been stated in their official capacities thereunto duly authorized;
(1xvii) each part of The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Indenture, insofar as matters of its effective dateColombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Registration Statement, at the respective times each part became effective, contained 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;
(2B) No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof or on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Pricing Disclosure Package, as of the Applicable Time, contained an any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) . Such counsel may state that he or she is not passing upon and does not assume any responsibility for the Prospectusaccuracy, as of its date and as completeness or fairness of the date hereof, statements contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
Prospectus (4) any amendment except to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect extent expressly set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(axvii) above) and a form that such counsel makes no representation that such counsel has independently verified the accuracy, completeness and fairness of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statementsuch statements (except as aforesaid), and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any that such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.counsel
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Shares to be delivered at the Time of Delivery shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and the Closing DateTime of Delivery, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a5(a) hereof; the final term sheet contemplated by Section 5(A)(a5(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.;
(b) King & Spalding LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Datedate of such Time of Delivery, with respect to such matters as the Underwriters may reasonably require. ; ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion opinions of the General Counsel of the Company and King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(bSections 6(c) and 6(c6(d), respectively.;
(c) The General Counsel of the Company shall have furnished to you his written opinion, dated the date of such Time of Delivery, in substantially the form of Annex I(a) hereto;
(d) King & Spalding LLP, counsel for the Company, shall have furnished to you their written opinion, dated the date of such Time of Delivery, in substantially the form of Annex I(b) hereto;
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the effect set forth financial statements and certain financial information contained or incorporated by reference in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, the Pricing Disclosure Package and as of the Time of Delivery, is attached as Annex I(b)).Prospectus;
(fi) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes Shares on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.;
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” ”, as that term is defined by the Commission for purposes of Rule 436(g)(2Section 3(a)(62) under of the Exchange Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.;
(ih) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes Shares on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.;
(i) The Company shall have filed the Articles of Amendment with the Secretary of State of the State of Georgia prior to the Time of Delivery; and
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Normal PPS shall be subject to the accuracy of the representations and warranties on the part of each of the Company Guarantor and the Trust contained herein as of the Applicable Time, the date hereof and the Closing Date, to the accuracy of the statements of the Company Guarantor and the Trust made in any certificates pursuant to the provisions hereof, to the performance by each of the Company Guarantor and the Trust of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company Guarantor or the Trust pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for the CompanyGuarantor, shall have furnished to the Underwriters an opinion or opinionsopinion, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the CompanyGuarantor and the Trust;
(ii) The Indenture Each of the Declaration of Trust, the Indenture, the Guarantee Agreement, the Stock Purchase Contract Agreement and the Collateral Agreement has been duly and validly authorized, executed and delivered by the Company Guarantor and constitutes a valid and binding agreement of the CompanyGuarantor, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and each of the Declaration of Trust, the Indenture and the Guarantee Agreement has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Junior Subordinated Notes have been duly and validly authorized by the Company Guarantor and, when authenticated by the Indenture Issuer Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the CompanyGuarantor, entitled to the benefits of the Indenture and enforceable against the Company Guarantor in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The Guarantee has been duly and validly authorized by the Guarantor and constitutes a valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(v) The issuance by the Guarantor of Preferred Stock pursuant to the Stock Purchase Contract Agreement and the Guarantor’s certificate of incorporation, as amended, has been duly authorized and, when certificates evidencing the shares of Preferred Stock have been executed by the Guarantor and authenticated by the Guarantor’s transfer agent in the manner provided in the Stock Purchase Contract Agreement and delivered on the Stock Purchase Date, such shares will be validly issued, fully paid and non-assessable;
(vi) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption captions “Description of the PPS,” “Description of the Stock Purchase Contracts,” “Certain Other Provisions of the Stock Purchase Contract Agreement and the Collateral Agreement,” “Description of the Junior Subordinated Notes,” “Description of the Guarantee,” “Relationship among PPS, Junior Subordinated Notes, Stock Purchase Contracts and Guarantee” and “Description of the Preferred Stock,” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and;
(vvii) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Certain U.S. Federal Income Tax Consequences to Holders of NotesConsequences” and “Employee Retirement Income Security ActERISA Considerations,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, 1974 and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects; and
(viii) The provisions of the Collateral Agreement are effective to create in favor of the Collateral Agent for the benefit of the Guarantor a valid security interest under the UCC in all Pledged Securities Entitlements in which a security interest may be created under Article 9 of the UCC (the “Article 9 Security Interest”); and the provisions of the Collateral Agreement are effective under the UCC and the Federal Book-Entry Regulations to perfect the Article 9 Security Interest in the Collateral Agent for the benefit of the Guarantor in the Pledged Security Entitlements.
(c) The Company Guarantor shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the CompanyGuarantor, to the effect that:
(i) The Company Guarantor has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company Guarantor has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company Guarantor have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company Guarantor has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the CompanyGuarantor, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company Guarantor or any of its subsidiaries or the Trust is a party or of which any property of the Company Guarantor or any of its subsidiaries or the Trust is the subject which is reasonably likely to be adversely determined against the Company Guarantor or any of its subsidiaries or the Trust and, if determined adversely to the Company Guarantor or any of its subsidiariessubsidiaries or the Trust, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company Guarantor and its subsidiaries, taken as a wholewhole or of the Trust; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the Declaration of Trust, the Indenture, the Guarantee Agreement, the Stock Purchase Contract Agreement and the Collateral Agreement, the issuance and sale of the Junior Subordinated Notes, the Guarantee, the Normal PPS and the Trust Common Securities and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company Guarantor, the Trust or SunTrust Bank is a party or by which the Company Guarantor, the Trust or SunTrust Bank is bound or to which any of the property or assets of the Company Guarantor, the Trust or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of the Trust or SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the CompanyGuarantor, the Trust or SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance issue and sale of the Normal PPS, the Junior Subordinated Notes or the Guarantee or the consummation by the Company and the Trust of the transactions contemplated by this the Underwriting Agreement, except such as have been obtained under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes Normal PPS by the Underwriters;
(viii) The Company Neither the Trust nor the Guarantor is not and, after giving effect to the offering and sale of the Notes Normal PPS and the application of the proceeds thereof, neither will not be an “investment company,” ”, as such term is defined in the Investment Company Act of 1940, as amendedAct;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any the Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1i) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2ii) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3iii) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4iv) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1i), (2ii), (3iii) and (4iv) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any the Statement of Eligibility on Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate Finger, P.A., special Delaware counsel to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP Guarantor and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c)Trust, respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or lettersthe Underwriters an opinion, dated the respective dates of delivery thereof, in form and substance satisfactory to youClosing Date, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).that:
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since The Trust has been duly created and is validly existing and in good standing under the date Delaware Statutory Trust Act and all filings required under the laws of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as State of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof Delaware with respect to the furnishing creation and valid existence of prospectuses on the business day next succeeding the date of this Agreement.Trust as a statutory trust have been made;
(hii) On or after Under the Applicable Time Delaware Statutory Trust Act and the Declaration of Trust, the Trust has the trust power and authority to own its property and conduct its business, all as described in the Prospectus;
(iii) The provisions of the Declaration of Trust, including the terms of the PPS, are permitted under the Delaware Statutory Trust Act and the Declaration of Trust constitutes a valid and binding obligation of the Guarantor and the Trustees, enforceable against the Guarantor and the Trustees in accordance with its terms, subject, as to enforcement, to the effect upon the Declaration of Trust of (i) no downgrading shall have occurred bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation, fraudulent conveyance or transfer and other similar laws relating to or affecting the rights and remedies of creditors generally, (ii) principles of equity, including applicable law relating to fiduciary duties (regardless of whether considered and applied in the rating accorded the Company’s debt securities a proceeding in equity or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Actat law), and (iiiii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally applicable public policy on the New York Stock Exchange; (ii) a suspension enforceability of provisions relating to indemnification or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; contribution;
(iv) Under the outbreak or escalation Delaware Statutory Trust Act and the Declaration of hostilities involving Trust, the United States or Trust has the declaration by trust power and authority to (x) execute and deliver this Agreement and the United States of a national emergency or war or Other Trust Transaction Agreement and to perform its obligations under this Agreement and the Other Trust Transaction Agreements, and (y) issue and perform its obligations under the PPS and the Trust Common Securities;
(v) Under the occurrence Delaware Statutory Trust Act and the Declaration of any other calamity or crisis or any change in financialTrust, political or economic conditions in (A) the United States or elsewhere, if execution and delivery by the effect Trust of any such event specified in clause (iv) or (v) in this Agreement and the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms Other Trust Transaction Agreement and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all Trust of its respective obligations hereunder and thereunder have been duly authorized by all necessary trust action on the part of the Trust; and (B) the Guarantor is authorized to be performed at or prior to such timeexecute and deliver this Agreement on behalf of the Trust
(vi) Under the Delaware Statutory Trust Act, as the form of certificates attached to the matters set forth in subsections (a) Declaration of Trust to represent the Normal PPS, Stripped PPS and (f) Capital PPS are appropriate forms of this Section certificates to evidence ownership of the Normal PPS, the Stripped PPS and as to such other matters as you may reasonably request.the Capital PPS, respect
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The ------------------------------------------------- obligations of the several Underwriters to purchase the Notes under this Agreement shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein set forth as of the Applicable Time, the date hereof and the as of each Closing Date, to the accuracy of the statements of the Company Company's officers made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder hereunder, and to the following additional conditions, unless waived in writing by the Representative:
(a) The Prospectus Registration Statement shall have been filed with declared effective by the Commission pursuant to Rule Commission; all filings required by Rules 424(b) and 430A under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433timely made; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding by the Commission or any state securities commission nor, to the knowledge of the Company, shall any proceedings for that purpose shall have been initiated or threatened by the Commission threatened; and no notice of objection any request of the Commission to the use or any state securities commission for inclusion of additional information in the Registration Statement Statement, or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission otherwise, shall have been complied with to your the reasonable satisfactionsatisfaction of the Representative.
(b) King & Spalding LLP, counsel for Since the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, dates as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries information is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained given in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause : (i) abovethere shall not have occurred any change or development involving, such counsel need or which would be reasonably expected to involve, a Material Adverse Effect, whether or not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received arising from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for transactions in the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates ordinary course of such entities business; and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor shall not have sustained any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any material loss or interference with its business from any labor dispute, strike, fire, explosionflood, flood windstorm, accident or other calamity, calamity (whether or not covered by insurance, insured) or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of whichwhich on the Company, in any such case described in clause (i) or (ii)) above, is is, in the judgment sole discretion of the Representatives Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes Shares on the terms and in the manner contemplated in the Pricing Disclosure Package Registration Statement and the Prospectus.
(c) The Representative shall not have been advised that the Registration Statement or the Prospectus contains an untrue statement of fact that, in the opinion of the Representative or counsel to the Underwriters, is material, or omits to state a fact that, in the opinion of the Representative or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(d) The Representative shall have received an opinion of Bartlit ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, addressed to the Representative, in its capacity as the Representative of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that, subject to customary qualifications and assumptions:
(i) the Company is validly existing as a corporation and in good standing under the laws of its jurisdiction of incorporation, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement;
(ii) the authorized capital stock of the Company consists of 150,000,000 shares of Class A Common Stock, par value $0.0001 per share, 50,000,000 shares of Class B Common Stock, par value $0.0001 per share and 50,000,000 shares of preferred stock, par value $0.0001 per share, and all such stock conforms in all material respects to the descriptions thereof in the Prospectus and the Registration Statement;
(iii) the issued and outstanding shares of capital stock of the Company immediately prior to the issuance and sale of the Shares to be sold by the Company hereunder have been duly authorized and validly issued, are fully paid and nonassessable, and there are no statutory preemptive rights to subscribe for or purchase any shares of capital stock of the Company, and no shares of capital stock of the Company have been issued in violation of such rights;
(iv) to such counsel's knowledge, except for the Subsidiaries, the Company has no "significant subsidiaries" (as defined in Rule 1- 02(w) of Regulation S-X under the Act), and the Company does not own any equity interest in or control, directly or indirectly, any other corporation, limited liability company, partnership, joint venture, association, trust or other business organization except as described in the Prospectus and the Registration Statement and except as set forth in Schedule III to this Agreement; each Subsidiary (excluding EcoSport, Inc., Gaiam International, Inc. and Real Goods Trading Corporation, as to which such counsel need not express any opinion) is validly existing, in good standing under the laws of the State of Colorado, with full power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; the issued and outstanding shares of the capital stock of each of Business Express, Inc., Gaiam Catalog, Inc., Gaiam Holdings, Inc., Gaiam Travel, Inc. and Real Good Trading Corporation have been duly authorized and validly issued, are fully paid and nonassessable and there are no preemptive rights to subscribe for or purchase any shares of capital stock of or other equity interest in any Subsidiary under the articles of incorporation or bylaws of such Subsidiary, Colorado law or the agreements listed as exhibits to the Registration Statement, and no shares of capital stock or other equity interest of any Subsidiary have been issued in violation of such rights; except as otherwise described in the Registration Statement the outstanding capital stock of each subsidiary owned by the Company is owned directly or indirectly, free and clear of any and all liens, claims, encumbrances and security interests;
(v) the issuance and sale of the Shares has been duly authorized by the Company and, when delivered to the Representative or upon the order of the Representative against payment of the agreed consideration therefor in accordance with the provisions of this Agreement, the Shares to be sold by the Company to the Underwriters hereunder will be duly and validly issued, fully paid and nonassessable, and free of any preemptive rights to subscribe for or purchase such Shares;
(vi) the Registration Statement has become effective under the Act, and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or are threatened under the Act or any Blue Sky Laws; the Registration Statement, as of its date, and the Prospectus, as of its date, and any amendment or supplement thereto (except for the financial statements and other statistical or financial data included therein, as to which such counsel need express no opinion), comply as to form in all material respects with the requirements of the Act, including Form S-1 promulgated under the Act;
(vii) the Company has the corporate power and authority to enter into and perform this Agreement; the performance of the Company's obligations hereunder and the consummation of the transactions described herein have been duly authorized by the Company by all necessary corporate action, and this Agreement has been duly executed and delivered by and on behalf of the Company, and is a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms; no consent, approval, authorization or other order or decree of any court, regulatory or governmental body, arbitrator, administrative agency or other instrumentality of the United States or of the State of Colorado is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements by the NASD);
(viii) the execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the articles of incorporation or by-laws of the Company or any Subsidiary; (B) result in the breach, modification or termination of, or constitute a default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or other instrument to which the Company or any Subsidiary is a party or by which the Company or such Subsidiary, or any of their respective owned or leased property is bound, and which is filed as an exhibit to the Registration Statement (except that such counsel need not express any opinion with respect to financial ratios or any aspect of the financial condition or results of operations of the Company to the extent the determination of such breach, modification, termination or default requires quantitative determination); or (C) violate any statute, ordinance, rule, or regulation of any regulatory or governmental body, or to such counsel's knowledge, any order or decree of any court, arbitrator, administrative agency or other instrumentality of the United States or of the State of Colorado (assuming compliance with all applicable federal and state securities laws);
(ix) to such counsel's knowledge, except as described in the Prospectus, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities;
(x) neither the Company nor any Subsidiary is, nor with the giving of notice or passage of time or both would be, (A) in violation of its respective articles of incorporation or by-laws, except for such violations that would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries taken as a whole or (B) to such counsel's knowledge, in default in any material respect in the performance of any agreement, lease, franchise, license, permit, mortgage, deed of trust, evidence of indebtedness or other instrument, or any other document, in each case that is filed as an exhibit to or incorporated by reference in the Registration Statement, to which the Company or any Subsidiary is subject or bound;
(xi) neither the Company nor any Subsidiary is an "investment company," or an "affiliated person" of, or "promoter" or "principal underwriter" for, an "investment company," as such terms are defined in the Investment Company Act of 1940, as amended (without regard to the second sentence of Section 3(c)(1) of such Act insofar as such sentence applies to the status of investment vehicles of ▇▇▇▇▇ ▇▇▇▇▇▇ as "affiliated persons" with respect to the Company), and, upon its receipt of any proceeds from the sale of the Shares, the Company will not become or be deemed to be an "investment company" thereunder;
(xii) the description in the Registration Statement and the Prospectus of legal matters, statutes, documents, regulations, legal and governmental proceedings, and contracts and other legal documents described therein fairly and correctly present, in all material respects, the information required to be included therein by the Act and fairly summarize the matters referred to therein; and
(xiii) nothing has come to such counsel's attention to lead them to believe that all sales by the Company of its capital stock before the date of the initial filing of the Registration Statement were not at all relevant times duly registered under or were exempt from the registration requirements of the Act. Such opinion may incorporate exclusions and such qualifications reasonably acceptable to the Representative and may, with respect to paragraphs (iii), (iv), (ix), (x), (xi) and (xiii), be based on written representations and certifications of the Company and respective offerees and purchasers of Shares. Any written representations and certifications on which such opinion may rely shall be provided to the Representative and shall be reasonably acceptable to the Representative.
(e) The Representative shall also have received a letter from Bartlit ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, special counsel for the Company, addressed to the Representative, in its capacity as the Representative of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that (i) no facts have come to the attention of such counsel which lead it to believe that either the Registration Statement, at the time it became effective, or the Prospectus or any amendment or supplement thereto, as of its date and as of the First Closing Date or Second Closing Date, as the case may be, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of the First Closing Date or the Second Closing Date, as the case may be, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they were made (except for the financial statements and other financial data included therein, as to which such counsel need express no opinion), and (ii) without limiting the generality of the foregoing, no facts have come to the attention of counsel which lead it to believe that there are legal or governmental proceedings pending or threatened against the Company, including, without limitation, any such proceedings that are related to environmental, employee benefit or employment discrimination matters, required to be described in the Registration Statement or the Prospectus which are not so described or which question the validity of this Agreement or any action taken or to be taken pursuant to this Agreement, nor is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference as required. Such letter may incorporate exclusions and such qualifications reasonably acceptable to the Representatives.
(f) The Representative shall have received an opinion of ▇▇▇▇▇▇▇, Phleger & ▇▇▇▇▇▇▇▇ LLP, counsel to the Underwriters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the issuance and sale of the Shares by the Company, the Registration Statement and other related matters as the Representative may require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as they request for the purpose of enabling them to pass upon such matters.
(g) The Company Representative shall have complied with the provisions received on each Closing Date, a certificate of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act▇▇▇▇▇ ▇▇▇▇▇▇, Chief Executive Officer, and (ii) no such organization shall have publicly announced that it has under surveillance▇▇▇▇ ▇▇▇▇▇▇, outlook, watch or review, with possible negative implications, its rating of any President of the Company’s debt securities or preferred stock., to the effect that:
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at set forth in Section 2 hereof are true and correct as of the date of this Agreement and as of the date of such timecertificate, as to the performance by and the Company of has complied in all of its respective obligations hereunder material respects with all the agreements and satisfied all the conditions to be performed or satisfied in all material respects by it at or prior to the date of such timecertificate;
(ii) To the best knowledge of the respective signatories, as after due inquiry, the Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the matters set forth in subsections knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending or contemplated under the Act or under the Blue Sky Laws of any jurisdiction;
(aiii) Each of the respective signatories has examined the Registration Statement and (f) of this Section the Prospectus, and as to any amendment or supplement thereto, and such other matters as you may reasonably request.documents contain all statements requ
Appears in 1 contract
Sources: Underwriting Agreement (Gaiam Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters Underwriters, as to purchase the Notes Securities to be purchased at each Time of Delivery, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof as of the Applicable Time and the Closing Dateat and as of such Time of Delivery, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof); the final term sheet contemplated by Section 5(A)(a) hereof), and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.;
(b) King & Spalding LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇S▇▇▇▇▇▇▇ & ▇C▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated the Closing Datesuch Time of Delivery, in form and substance satisfactory to you, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP , and such counsel shall have received such papers and information as they may rely reasonably request to enable them to pass upon such matters;
(ic) The Company’s Senior Corporate Counsel or such other internal counsel as to those matters that relate shall be reasonably acceptable to the Indenture Trustee, upon Underwriters (the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c“Internal Counsel”), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letterssuch counsel’s written opinion, to the effect set forth in Annex II(a), dated the respective dates such Time of delivery thereofDelivery, in form and substance satisfactory to you;
(d) V▇▇▇▇▇▇ LLP, Maryland counsel for the Company, shall have furnished to you their written opinion, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration StatementII(b), and as of the dated such Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, form and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees substance satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.you;
Appears in 1 contract
Sources: Underwriting Agreement (Huntington Bancshares Inc/Md)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinionsopinion, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Certain U.S. Federal Income Tax Consequences to Holders of NotesConsequences” and “Employee Retirement Income Security ActERISA Considerations,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amendedAct;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any the Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1i) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2ii) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3iii) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4iv) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1i), (2ii), (3iii) and (4iv) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any the Statement of Eligibility on Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, PricewaterhouseCoopers LLP and Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b))hereto.
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time, the Notes shall have been accorded a rating of not less than “A+” by Standard & Poor’s Ratings Service, not less than “Aa3” by ▇▇▇▇▇’▇ Investors Service, Inc. and not less than “A+” by Fitch Ratings.
(i) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(ij) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc. makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(jk) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its their respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters of any Designated Securities under the Pricing Agreement relating to purchase the Notes such Designated Securities shall be subject subject, in the discretion of the Representatives, to the accuracy of the condition that all representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and the Closing Date, to the accuracy of the other statements of the Company made in any certificates pursuant or incorporated by reference in the Pricing Agreement relating to such Designated Securities are, at and as of the provisions hereofTime of Delivery for such Designated Securities, to true and correct, the performance by condition that the Company shall have performed all of its obligations hereunder theretofore to be performed and to the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to such Designated Securities shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a5(a) hereof; if the final term sheet contemplated Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become effective by Section 5(A)(a) hereof10:00 P.M., and any other Washington, D.C. time, on the date of this Agreement; all material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods period prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your the Representatives’ reasonable satisfaction.
(b) King ▇▇▇▇▇▇▇ ▇▇▇▇ & Spalding ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, shall have furnished to the Representatives such written opinion or opinions, dated the Time of Delivery for such Designated Securities, with respect to the matters as the Representatives may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters.
(c) ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinionsyou its written opinion, dated as of the Closing DateTime of Delivery for such Designated Securities, in form and substance reasonably satisfactory to you, to the effect that:
(i) This The Company is validly existing and in good standing under the laws of the State of Delaware;
(ii) The Company has the corporate power to enter into and perform its obligations under this Agreement, the Pricing Agreement and the Indenture and to issue and sell the Designated Securities and to own, lease and operate its properties and to conduct its business as described in the Pricing Disclosure Package and the Prospectus;
(iii) Each of this Agreement and the Pricing Agreement has been duly authorized, executed and delivered by the Company;
(iiiv) The Indenture has been duly and validly authorized, executed and delivered by the Company and, assuming the due authorization, valid execution and constitutes delivery thereof by the Trustee, the Indenture is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, subject, as except to the extent that enforcement thereof may be limited by (a) the laws of remedies, to bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium, fraudulent transfer and or similar laws relating to or affecting the creditors’ rights and remedies generally (whether now or hereafter in effect), (b) laws limiting rights of creditors generally, and the effects indemnity or contribution or (c) equitable principles of general principles applicability (regardless of whether enforceability is considered in a proceeding at law or in equity); and the Indenture has been duly qualified under the Trust Indenture Act;
(iiiv) The issuance, execution and delivery of the Notes Designated Securities have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executedauthorized, issued and executed by the Company, and when authenticated in accordance with the provisions of the Indenture, and delivered to and paid for in accordance with the manner provided in applicable provisions of this Agreement and the Pricing Agreement, the Designated Securities will be entitled to the benefits of the Indenture and will constitute be valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its their respective terms, subject, as except to the extent that enforcement thereof may be limited by (i) the laws of remedies, to bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium, fraudulent transfer and or similar laws relating to or affecting the creditors’ rights and remedies generally (whether now or hereafter in effect), (ii) laws limiting rights of creditors generallyindemnity or contribution, and the effects or (iii) equitable principles of general principles applicability (regardless of whether enforceability is considered in a proceeding at law or in equity);
(ivvi) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes,” insofar as these statements they purport to describe the summarize certain provisions of the documents referred to thereinIndenture and the Designated Securities, constitute an are accurate summary of the matters set forth therein summaries in all material respects; and;
(vvii) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions caption “United States Certain U.S. Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security ActConsequences,” insofar as they purport to such statements constitute summaries a summary of matters of U.S. United States federal income tax law and the U.S. Employee Retirement Income Security Act of 1974referred to therein, as amended, and regulations or legal conclusions with respect thereto, constitute are accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not andnot, and after giving effect to the offering and sale of the Notes Designated Securities and the application of the proceeds thereof, thereof as described in the Pricing Disclosure Package and the Prospectus under the caption “Use of Proceeds,” will not be be, required to register as an “investment company,” as such term is defined in within the meaning of the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, Statement and the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information data contained or incorporated by reference therein and any or omitted therefrom, the Statement of Eligibility on Form T-1 Statements and assessments of Eligibility and Qualification filed as exhibits to or reports on the Registration Statementeffectiveness of internal control over financial reporting contained or incorporated by reference therein, as to which such counsel need we express no opinion) ), comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and;
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information data contained thereinor incorporated by reference therein or omitted therefrom, the Statement of Eligibility on Form T-1 and assessments of or reports on the effectiveness of internal control over financial reporting contained or incorporated by reference therein or omitted therefrom, as to which such counsel need we express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Securities Exchange Act, as applicable, and the rules and regulations of the Commission thereunder;
(xi) The Registration Statement is effective under the Act and, to our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act or proceedings therefore initiated or threatened by the Commission;
(xii) The execution and delivery of this Agreement, the Pricing Agreement and the Indenture by the Company, the issuance and sale of the Designated Securities, and the performance by the Company of its obligations under this Agreement, the Pricing Agreement, the Designated Securities and the Indenture, as the case may be, (i) will not violate or conflict with the Organizational Documents of the Company and (ii) will not result in any violation of any United States federal or New York state law, rule or regulation or the Delaware General Corporation Law that, in our opinion based on our experience, are normally applicable to transactions of the type contemplated by this Agreement, other than United States federal and state securities laws and any rules and regulations of the Financial Industry Regulatory Authority (collectively, “Applicable Law”), other than, in the case of clause (b), any such conflicts, breaches, violations, defaults, liens or encumbrance which, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect on the Company or impair or prevent the ability of the Company to consummate the offering of the Designated Securities; and
(xiii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required under any Applicable Law for the issue of the Designated Securities or the consummation by the Company of the transactions contemplated by this Agreement or the Pricing Agreement, except for such consents, approvals, authorizations, orders, registration or filings which have been obtained or made or the failure of which to obtain or make, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect on the Company or impair or prevent the ability of the Company to consummate the offering of the Designated Securities. In addition, Such counsel shall also state that although such counsel need it does not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the ProspectusProspectus as amended or supplemented, such counsel shall confirm except for those referred to in the opinion in subsection (v) of this Section 8(c), no facts have come to its attention that he has no reason have caused it to believe that:
that (1) each part of the Registration Statement, as of its most recent effective datedate with respect to the Underwriters pursuant to, and within the meaning of, Rule 430(B)(f)(2) under the Securities Act, contained 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;
, (2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (3) the Prospectus, as of its date or at the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and of public officials. Such opinions shall be limited to the federal laws of the United States, the laws of New York State and the General Corporation Law of the State of Delaware. The parties acknowledge that, in rendering such opinions, such counsel is not rendering any opinion with respect to the insurance laws or regulations or any securities laws other than U.S. federal securities law.
(d) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Executive Vice President, General Counsel, Chief Compliance Officer and Secretary of Parent shall have furnished to you a written opinion, dated as of such Time of Delivery, in form and substance reasonably satisfactory to you, to the effect that:
(i) The Company and each of its subsidiaries, where necessary, are duly licensed to conduct insurance or reinsurance business, as the case may be, under the insurance statutes of each jurisdiction in which the conduct of its business requires such licensing, except for such jurisdictions in which the failure of the Company or any of its subsidiaries to be so licensed would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company; the Company and the Company’s subsidiaries have made all required filings under applicable insurance holding company statutes in each jurisdiction where such filings are required, except for such jurisdictions in which the failure to make such filings would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company. The Company and the Company’s subsidiaries have all other necessary authorizations, approvals, orders, consents, certificates, permits, registrations and qualifications of and from all insurance regulatory authorities necessary to conduct their respective businesses as described in the Pricing Prospectus and the Prospectus, except where the failure to have such authorizations, approvals, orders, consents, certificates, permits, registrations or qualifications would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company, and none of the Company or any of its subsidiaries has received any notification from any insurance regulatory authority to the effect that any additional authorization, approval, order, consent, certificate, permit, registration or qualification is needed to be obtained by any of them, in any case where it could be reasonably expected that (x) the Company and the Company’s subsidiaries would be required either to obtain such additional authorization, approval, order, consent, certificate, permit, registration or qualification or to cease or otherwise limit the writing of certain business and (y) the failure to obtain such additional authorization, approval, order, consent, certificate, permit, registration or qualification or the limiting of the writing of such business would have a Material Adverse Effect on the Company; and no insurance regulatory authority having jurisdiction over the Company or any of its subsidiaries has issued any order or decree impairing, restricting or prohibiting the payment of dividends by or to any of them;
(3ii) Other than as set forth in the ProspectusRegistration Statement, the Pricing Disclosure Package and the Prospectus as of its date and as amended or supplemented, there are no legal or governmental proceedings pending to which any of the date hereofCompany, contained the Company’s subsidiaries, Parent and Parent’s subsidiaries is a party or contains an untrue statement of a material fact which any property of any of them is the subject which, individually or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light aggregate, might reasonably be expected to have a Material Adverse Effect on Parent or a Material Adverse Effect on the Company; and, to the best of the circumstances under which they were madesuch counsel’s knowledge, not misleading; orno such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(4iii) Such counsel does not know of any amendment to the Registration Statement is required to be filed contract or that there are any contracts or other documents document of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus as amended or supplemented or required to be described in the Registration Statement or the Prospectus as amended or supplemented which are is not filed or so filed, incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.;
(div) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for issue and sale of the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP Designated Securities and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither compliance by the Company nor any with all of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after , the Applicable Time (i) no downgrading shall have occurred in Pricing Agreement, the rating accorded Designated Securities and the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the ActIndenture, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch the consummation of the transactions herein and therein contemplated will not conflict with or review, with possible negative implications, its rating result in a breach or violation of any of the Company’s debt securities terms or preferred stock.
provisions of, or constitute a default under, (iA) On any indenture, mortgage, deed of trust, loan agreement or after the Applicable Time there shall not have occurred other agreement or instrument known to such counsel to which any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in Company, the Company’s securities subsidiaries, Parent and Parent’s subsidiaries are a party or by which any of them are bound or to which any of them or their properties are subject, or any statute or any rule, regulation or order known to such counsel of any court or governmental agency or body having jurisdiction over any of them or any of their properties (except for such conflicts, breaches, violations or defaults which do not or would not, individually or in the aggregate, have a Material Adverse Effect on Parent or a Material Adverse Effect on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war Company), or (vB) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment provision of the Representatives makes it impracticable certificate of incorporation, bylaws, memorandum of association or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.organizational d
Appears in 1 contract
Sources: Underwriting Agreement (Everest Reinsurance Holdings Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable TimeTime of Sale, the date hereof Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus Final Prospectus, and any supplement thereto, shall have been filed with in the Commission pursuant to manner and within the time period required by Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof); the final term sheet contemplated by Section 5(A)(a5(b) hereofhereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any part thereof notice by the Commission objecting to its use shall have been issued and no proceeding proceedings for that purpose shall have been initiated instituted or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfactionthreatened.
(b) King & Spalding ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinionsRepresentatives its opinion, dated the Closing DateDate and addressed to the Representatives, to the effect that:
(i) This Agreement the Company has been duly authorizedorganized and is validly subsisting as a corporation under the laws of the Commonwealth of Pennsylvania, executed with full corporate power and delivered by authority under its articles of incorporation to own or lease, as the Companycase may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
(ii) The Indenture has been duly the Securities are in due and validly authorized, executed proper form; the issue and delivered sale of the Securities by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement the terms of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes this Agreement have been duly and validly authorized by all necessary corporate action on the part of the Company and by orders duly entered by the Pennsylvania Public Utility Commission. The Securities have been duly executed and delivered by the duly authorized officers of the Company and, when authenticated and delivered by the Indenture TrusteeTrustee against payment therefor, executed, issued and delivered in the manner provided in the Indenture will constitute legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as their terms subject to enforcement (1) the effect of remedies, to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and conveyance, fraudulent transfer, marshalling or similar laws affecting the creditors’ rights and remedies of creditors generally, generally and the effects of (2) general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(iii) the Indenture has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by duly authorized officers of the Company. The Indenture constitutes a legal, valid and binding instrument, enforceable in accordance with its terms except as the enforceability thereof may be limited by (1) the effect of applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer, marshalling or similar laws affecting creditors’ rights and remedies generally and (2) general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether such enforceability is considered in a proceeding in equity or at law). The Indenture has been duly qualified under the Trust Indenture Act;
(iv) The statements set forth in the Pricing Disclosure Package and Indenture constitutes a valid mortgage lien of record upon all real property presently owned by the Prospectus under the caption “Description of the Notes” insofar Company described therein as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished subject to the Underwriters an opinionlien thereof (other than properties expressly excepted therefrom, dated properties properly released from the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel lien thereof pursuant to the terms thereof and substantially all of the Company’s leaseholds), and the Securities are secured by a valid and, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing extent that it may be perfected by filing under the laws Uniform Commercial Code, a perfected security interest in such of the State personal property of Georgia, and the Company as is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
Indenture, whether such personal property is now owned or hereinafter acquired by the Company (ii) The Company has an authorized capitalization other than properties expressly excepted therefrom; properties released from the security interest created thereby; “proceeds” as set forth defined in the Prospectus, and all Uniform Commercial Code to the extent limited by the terms of Section 9-315 of the issued shares of capital stock Uniform Commercial Code; after-acquired property subject to Section 552 of the Company have been duly Federal Bankruptcy Code; property sold to a buyer in the ordinary course of business, licensed to a licensee in the ordinary course of business or leased to a lessee in the ordinary course of business; insurance policies (except to the extent that payments thereunder are “proceeds,” as defined in the Uniform Commercial Code); and validly authorized and issued and contract rights or general intangibles which by their terms, or by law, are fully paid and non-assessable;
(iii) The Company has been duly qualified not assignable); such counsel need express no opinion as a foreign corporation to any actions that may be required to be taken periodically under the Uniform Commercial Code or other applicable law in order for the transaction validity or perfection of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure security interest to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claimsmaintained;
(v) To this Agreement has been duly authorized, executed and delivered by the Company;
(vi) such counsel is not representing the Company in any pending litigation in which it is a named defendant, or in any litigation that is overtly threatened in writing against it by a potential claimant, that challenges the validity or enforceability of, or seeks to enjoin the performance of, the transactions contemplated by this Agreement, the Indenture and the Securities and, to the knowledge of such counsel’s knowledge and other than as set forth in the Prospectus, there are no material pending legal or governmental proceedings pending to which the Company or any of its subsidiaries subsidiary is a party or of and which are required to be set forth in the documents incorporated by reference in the Registration Statement and Final Prospectus other than those referred to in such documents; and the statements in any property Preliminary Prospectus and the Final Prospectus under the heading “Description of the Company or any of its subsidiaries is Bonds and First and Refunding Mortgage” fairly summarize the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and matters therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesdescribed;
(vii) the PAPUC has entered an appropriate order authorizing the Company to issue and sell the Securities as contemplated herein; such order is in full force and effect and, to the best of such counsel’s knowledge after due inquiry, no proceeding has been initiated upon appeal from or to review the effectiveness of such order. No other consent, approval, authorization, order, registration filing with or qualification order of or with any court or state or federal governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of in connection with the transactions contemplated by in this Agreement, the Indenture or the Securities, except such as have been obtained under the Act Act, the Trust Indenture Act, and from the PAPUC, and such consents, approvals, authorizations, registrations or qualifications as may be required under state the blue sky or securities or Blue Sky laws of any jurisdiction in connection with the purchase and distribution sale of the Notes Securities by the UnderwritersUnderwriters in the manner contemplated in this Agreement and the Final Prospectus and such other approvals (specified in such opinion) as have been obtained;
(viii) The Company is not and, after giving effect to the offering and sale Registration Statement has become effective under the Act; any required filing of the Notes Base Prospectus, any Preliminary Prospectus and the application of the proceeds thereofFinal Prospectus, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicablepursuant 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, made no stop order suspending the effectiveness of the Registration Statement or any notice by the Company prior Commission objecting to its use has been issued, no proceedings for that purpose have been instituted or threatened, and the Time of Delivery Registration Statement (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they as of the date the Registration Statement originally became effective or were filed under the Act, and together with the CommissionPreliminary Prospectus and the final Prospectus, as of each “new effective date” with respect to the Notes pursuant to and within the meaning of Rule 430B(f)(2) under the Act, complied, and the Preliminary Prospectus and the final Prospectus (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion), as of their respective dates, complied, and the final Prospectus (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion), as of the date hereof, complies, in each case may be, complied as to form in all material respects with the applicable requirements of the Act or Act, the Exchange ActAct and the Trust Indenture Act and the respective rules thereunder;
(ix) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus, will not be required to register as an “investment company” under the Investment Company Act of 1940, as applicableamended;
(x) the execution and delivery of this Agreement, the Indenture and the Securities, the consummation of any other transactions contemplated by this Agreement, the Indenture and the Securities, and the rules and regulations fulfillment of the Commission thereunder. In additionterms hereof or thereof do not, although such counsel need not pass upon and the performance of the obligations hereunder and thereunder will not, (1) violate the articles of incorporation and bylaws of the Company; (2) violate any statute, law, rule, regulation, judgment, order or assume decree applicable to the Company or any responsibility of its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its subsidiaries or any of their properties; or (3) conflict with, breach or result in a default under the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of its subsidiaries is a party or bound or to which their property is subject that is listed in the Exhibit Index to the Company’s Form 10-K for the accuracyfiscal year ended December 31, completeness 2020, and Forms 8-K filed with the Commission during the period between January 1, 2021 and the Closing Date or fairness result in the creation or imposition of any security interest in or lien or encumbrance upon, any property or asset of the statements contained Company or any of its subsidiaries pursuant to any item referred to in this clause (3) (other than the Registration Statementlien of the Indenture);
(xi) the discussions in any Preliminary Prospectus and the Final Prospectus in each case under the caption “Certain United States Federal Income Tax Consequences” are fair and accurate summaries of the matters addressed therein, based upon current law and the Pricing Disclosure Package assumptions stated or the Prospectusreferred to therein, and such counsel shall confirm that he these discussions, to the extent they constitute matters of federal income tax law or legal conclusions with respect thereto, represent its opinion; and
(xii) such counsel has no reason to believe that:
that (1) each part of on the Effective Date, the Registration Statement, as of its effective date, Statement contained an any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
, (2) the Pricing Disclosure Package, as of the Applicable TimeTime of Sale, the Disclosure Package contained an any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
misleading or (3) the Prospectus, as of its date and as of on the date hereofClosing Date, contained the Final Prospectus included or contains an includes any untrue statement of a material fact or omitted or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
misleading (4) any amendment to the Registration Statement is required to be filed or that there are any contracts or in each case, other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to than the financial statements and related schedules and other financial information contained therein, and with respect as to clause (i) abovewhich such counsel need express no opinion); In rendering such opinion, such counsel need not express a belief with respect may rely (A) as to matters involving the application of laws of any Form T-1jurisdiction other than the Commonwealth of Pennsylvania or the Federal laws of 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 Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(dc) The Underwriters Representatives shall have received from ▇▇▇▇▇▇▇▇ Winston & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to such the issuance and sale of the Securities, the Indenture, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriters Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. ▇▇▇▇▇▇▇▇ In rendering such opinion, Winston & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trusteerely, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Lawthe laws of the State of Pennsylvania, upon the opinion of King & Spalding LLP and counsel for the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant Company referred to in Section 6(b) and 6(c), respectively.
(ed) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP The Company shall have furnished to you the Representatives a letter certificate of the Company, signed by the Chairman of the Board or lettersthe President and the principal financial or accounting officer of the Company, dated the respective dates of delivery thereof, in form and substance satisfactory to youClosing Date, to the effect set forth in Annex I (a form that the signers of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendment or supplement thereto and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Time of Delivery, is attached Closing Date with the same effect as Annex I(b)).if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(fii) Neither no stop order suspending the Company nor effectiveness of the Registration Statement or any of notice by the Commission objecting to its Significant Subsidiaries shall use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iiii) sustained since the date of the latest audited most recent financial statements included or incorporated by reference in the Pricing Disclosure Package and the Final Prospectus (exclusive of any loss or interference with its business from firesupplement thereto), explosionthere has been no Material Adverse Effect, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than except as set forth in or contemplated in the Pricing ProspectusDisclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives.
(iif) since Subsequent to the respective Execution Time or, if earlier, the dates as of which information is given in the Pricing Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the capital stock letter or long-term debt letters referred to in paragraph (e) of the Company this Section 6 or any of its subsidiaries or (ii) any change, or any development involving a prospective change, in or affecting the general affairsfinancial condition, management, financial position, stockholders’ equity business or results of operations properties of the Company and its subsidiaries, otherwise than taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Pricing Prospectus, Disclosure Package or the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any such case described referred to in clause (i) or (ii)) above, is is, in the sole judgment of the Representatives Representatives, so material and adverse as to make it impracticable impractical or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner Securities as contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.Registration
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The respective rights and obligations of the Underwriters to purchase the Notes as provided in this Agreement shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditionsconditions with respect to the Offered Certificates:
(a) The Prospectus No stop order suspending the effectiveness of the Registration Statement shall have been filed with issued and no proceedings for that purpose shall have been instituted or threatened; and the Commission pursuant Preliminary Prospectus and the Prospectus and, to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereofextent required, and any all other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Time of Sale Information shall have been filed with the Commission within the applicable time periods period prescribed by the Commission; and any Free Writing Prospectuses required to be filed by the Company under Section 9(e) hereof shall have been filed or transmitted for filing with the Commission in accordance with Rule 433 under the Securities Act, to the extent required to be filed thereunder.
(b) The Company shall have delivered to the Underwriters a certificate, dated the Closing Date, executed by an officer of the Company, to the effect that the signatory of such filings by Rule 433; certificate has carefully examined the Registration Statement, the Time of Sale Information, this Agreement and the Prospectus and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, (ii) the Company has in all material respects complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied on or prior to the Closing Date, (iii) no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have has been issued and no proceeding proceedings for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing Dateinstituted or, to the effect that:
(i) This Agreement has been duly authorizedCompany’s knowledge, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generallythreatened, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport nothing has come to describe the provisions of the documents referred his/her attention that would lead him/her to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to believe that the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure PackageSale Information, as of the Applicable TimeTime of Sale, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its the date of the Prospectus and as of the date hereofClosing Date, contained or contains an any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Time of Sale Information, when read in conjunction with other Time of Sale Information), in the light of the circumstances under which they were made, not misleading.
(c) The Company shall have furnished or caused to be furnished to the Underwriters a good standing certificate regarding the Company from the Secretary of State of the State of Delaware, dated not earlier than 30 days prior to the Closing Date.
(d) The Company shall have furnished or caused to be furnished to the Underwriters an officer’s certificate, dated the Closing Date and signed by the Manager of Cantor Commercial Real Estate Sponsor Holdings, LLC, which indirectly controls the Company, that includes an incumbency certification with respect to the Company. Such Manager’s certificate shall be accompanied by, among other things, true and complete copies (certified as such by the secretary or an assistant secretary of the Company) of the organizational documents of the Company, as in effect on the Closing Date, and any required affiliate consent relating to the transactions contemplated in this Agreement, the Mortgage Loan Purchase Agreements and/or the Pooling and Servicing Agreement.
(e) The Underwriters shall have received from ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America.
(f) The Underwriters shall have received from ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special counsel to the Company, its letter, dated as of the Closing Date, relating to the Preliminary Prospectus, as of the Time of Sale, and to the Prospectus, as of the date of the Prospectus and as of Closing Date, that is satisfactory in form and substance to counsel for the Underwriters.
(g) The Underwriters shall have received from in-house counsel for the Company, a written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters. Such opinion (i) may express counsel’s reliance as to factual matters on certificates of government and agency officials and the representations and warranties made by, and on certificates or other documents furnished by officers of, the parties to this Agreement, the Mortgage Loan Purchase Agreements and the Pooling and Servicing Agreement and (ii) may be qualified as an opinion only on the law of the State of New York, the General Corporation Law of the State of Delaware and the federal law of the United States of America.
(h) The Underwriters shall have received from counsel for each of the Master Servicer, the Special Servicers, the Operating Advisor, the Asset Representations Reviewer, the Trustee and the Certificate Administrator a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters shall have reasonably requested and in form and substance satisfactory to counsel for the Underwriters, which will include an opinion as to the compliance of the disclosure in the Preliminary Prospectus and the Prospectus with respect to each such party with the requirements of Regulation AB and that such disclosure in the Preliminary Prospectus, as of the Time of Sale, and in the Prospectus, as of its date and as of the Closing Date, does not contain an untrue statement of any material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment . Any such opinions shall be addressed to the Registration Statement is required to be filed Underwriters or that there are any contracts or other documents of a character required to be filed as an exhibit accompanied by reliance letters to the Registration Statement Underwriters or required to be incorporated by reference into shall state that the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1Underwriters may rely upon them.
(di) The Underwriters shall have received from Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the Underwriters, such opinion a written opinion, dated the Closing Date and satisfactory in form and substance to the Underwriters.
(j) The Underwriters shall have received (i) from KPMG LLP (“KPMG”) and Ernst & Young LLP, certified public accountants, a copy of the Accountant’s Due Diligence Report and (ii) from KPMG letters dated the Time of Sale and the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters.
(k) The Offered Certificates listed on Schedule I hereto shall have been rated as indicated in the Time of Sale Information by the rating agency or opinionsagencies indicated therein.
(l) The Underwriters shall have received from counsel to each Mortgage Loan Seller, its written opinion, dated the Closing Date, that is satisfactory in form and substance to counsel for the Underwriters.
(m) The Underwriters shall have received from counsel to each Mortgage Loan Seller a favorable opinion, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, reasonably requested and in form and substance satisfactory to youcounsel for the Underwriters, which will include an opinion as to the effect set forth in Annex I (a form compliance of the executed copy disclosure in the Preliminary Prospectus and the Prospectus with respect to each such party with the requirements of Regulation AB and that such disclosure in the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration StatementPreliminary Prospectus, and as of the Time of DeliverySale, is attached and in the Prospectus, as Annex I(b))of its date and as of the Closing Date, does not contain an untrue statement of any material fact or omit 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. Any such opinions shall be addressed to the Underwriters or accompanied by reliance letters to the Underwriters or shall state that the Underwriters may rely upon them.
(fn) Neither the Company nor any of its Significant Subsidiaries The Underwriters shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business received from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than each Mortgage Loan Seller an Officer’s Certificate as set forth or in Section 8(b) of each Mortgage Loan Purchase Agreement, each in form and substance satisfactory to counsel for the Underwriters.
(o) All proceedings in connection with the transactions contemplated in the Pricing Prospectusby this Agreement, and all documents incident hereto and thereto, shall be satisfactory in form and substance to the Underwriters and counsel for the Underwriters, and the Underwriters and counsel for the Underwriters shall have received such additional information, certificates, opinions and documents as they may reasonably request.
(iip) since Subsequent to the respective dates as of which information is given in the Pricing Prospectus date hereof, there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or occurred any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity business or results of operations properties of the Company and its subsidiariesor a Mortgage Loan Seller (including any of the Mortgage Loans) that such Underwriter concludes, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the reasonable judgment of such Underwriter, materially impairs the Representatives investment quality of the Offered Certificates so material and adverse as to make it impracticable impractical or inadvisable to proceed with the public offering or the delivery of the Notes on Offered Certificates as contemplated by the terms Preliminary Prospectus and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(gq) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of If any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there conditions specified in this Section 6 shall not have occurred been fulfilled in all material respects when and as provided by this Agreement, or if any of the following: (i) a suspension opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material limitation respects satisfactory in trading form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled on, or at any time prior to, the Closing Date by the Underwriters. Notice of such cancellation shall be given to the Company in securities generally on the New York Stock Exchange; (ii) a suspension writing, by telephone or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal telegraph or New York or Georgia authorities or a material disruption telecopier confirmed in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectuswriting.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement (CF 2019-Cf2 Mortgage Trust)
Conditions to the Obligations of the Underwriters. The several obligations of the Underwriters to purchase the Notes shall be hereunder are subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company Westpac Parties and the Issuer Trustee of its their obligations hereunder and to the following additional conditions:
(ai) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under effectiveness of the Act within the applicable time period prescribed for such filing by the rules Registration Statement and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; that no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission SEC; and no notice of objection of the Commission to Preliminary Prospectus and the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as SEC pursuant to Rule 424(b) within the case may be, complied as to form in all material respects with applicable time period prescribed for such filing by the requirements Rules and Regulations under the Securities Act. Any request of the Act or the Exchange Act, as applicable, and the rules and regulations SEC for inclusion of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described additional information in the Registration Statement or the Prospectus shall have been complied with;
(ii) the representations and warranties of the Westpac Parties and the Issuer Trustee contained herein are true and correct on and as of the Closing Date as if made on and as of the Closing Date and the representations and warranties of the Westpac Parties in the Basic Documents will be true and correct on the Closing Date; and each Westpac Party and the Issuer Trustee shall have complied with all agreements and all conditions on its part to be performed or satisfied hereunder and under the Basic Documents to which are not filed each is party, at or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect prior to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.Closing Date;
(diii) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for subsequent to the Underwriters, such opinion or opinions, dated execution and delivery of this Agreement and prior to the Closing Date, with respect to such matters as there shall not have occurred any downgrading of the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates long-term debt of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.Westpac;
(eiv) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated since the respective dates as of delivery thereof, which information is provided in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, the Preliminary Prospectus and as the Prospectus there shall not have been any material adverse change in or affecting the condition (financial or otherwise) or in or affecting the earnings, business or operations of the Time of DeliveryWestpac Parties, is attached taken as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference a whole, in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamityeach case, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decreearising in the ordinary course of business, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) which in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the Closing Date on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.;
(jv) The Company the Representatives shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at received on and as of the Closing Date a certificate of an executive officer of each Westpac Party, with specific knowledge about financial matters of such timeWestpac Party, as satisfactory to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as Representatives to the matters effect set forth in subsections 6(ii) through (aiv);
(vi) Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Australian counsel for Westpac, the Trust Manager and the Servicer, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance satisfactory to the Representatives, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters; on the date hereof and also on the Closing Date;
(vii) the Representatives shall have received on and as of the Closing Date an opinion of Sidley Austin LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and other related matters as the Representatives may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(viii) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ & Maw LLP, United States counsel for Westpac and the Trust Manager, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance satisfactory to the Representatives, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(ix) ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ & Maw LLP, United States federal income tax counsel for Westpac, the Issuer Trustee and the Trust Manager, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance satisfactory to the Representatives;
(x) Mallesons ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Australian counsel for the Issuer Trustee, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance satisfactory to the Representatives, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(xi) ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, United States counsel for the Note Trustee, shall have furnished to the Representatives their written opinion, dated the Closing Date, in form and substance satisfactory to the Representatives, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(xii) Allens ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, counsel for the Interest Rate Swap Provider and Currency Swap Provider, shall have furnished to the Representatives their written opinion in form and substance satisfactory to the Representatives;
(xiii) the Representatives shall have received a letter or letters from each counsel delivering any written opinion to Standard & Poor’s Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. (“Standard and Poor’s”) and ▇▇▇▇▇’▇ Investors Service, Inc. (f“Moody’s” and together with Standard and Poor’s the “Rating Agencies”) in connection with the transaction described herein which is not otherwise described in this Agreement allowing the Representatives to rely on such opinion as if it were addressed to the Representatives;
(xiv) at the Closing Date, the Notes shall have been rated “AAA” by Standard and Poor’s and “Aaa” by Moody’s as evidenced by letters from the Rating Agencies;
(xv) the Representatives shall have received a letter of PricewaterhouseCoopers LLP, dated the date of the final Prospectus, in form and substance reasonably satisfactory to the Representatives, stating in effect that they have performed certain specified procedures as a result of which they have determined that certain information of an accounting, financial or statistical nature set forth in the Preliminary Prospectus and the final Prospectus (and any amendments and supplements thereto), agrees with Westpac’s mortgage loan data files as delivered by the Representatives to PricewaterhouseCoopers LLP, excluding any questions of legal interpretation;
(xvi) the Representatives shall have received on and as of the Closing Date a certificate of an Authorized Officer of the Note Trustee, with specific knowledge about that part of the Registration Statement which constitutes the Statement of Eligibility and Qualification (Form T-1) of this Section the Note Trustee under the Trust Indenture Act, satisfactory to the Representatives to the effect that such part of the Registration Statement complies, or will comply, as the case may be, in all material respects with the Securities Act and the Trust Indenture Act and does not and will not contain any untrue statement of a material act or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(xvii) the execution and delivery by all parties thereto of the Basic Documents on or prior to the Closing Date; and
(xviii) on or prior to the Closing Date the Westpac Parties and the Issuer Trustee shall have furnished to the Representatives such further certificates and documents as to such other matters as you the Representatives may reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement (Westpac Securitisation Management Pty LTD)
Conditions to the Obligations of the Underwriters. The obligations of the several Underwriters to purchase the Notes under this Agreement shall be subject to the accuracy of the representations and warranties on the part of the Company contained Offerors herein set forth as of the Applicable Time, the date hereof and the as of each Closing Date, to the accuracy of the statements of the officers of the Company and the Administrative Trustees of the Trust made in any certificates pursuant to the provisions hereof, to the performance by the Company Offerors of its their obligations hereunder hereunder, and to the following additional conditions, unless waived in writing by the Underwriters:
(a) The Prospectus Registration Statement shall have been filed with declared effective by the Commission not later than 5:30 p.m., Washington, D. C. time, prior to the date of this Agreement, or such later time as shall have been consented to by you, which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Underwriters pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433timely made; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding by the Commission or any state securities commission nor, to the knowledge of the Company, shall any proceedings for that purpose shall have been initiated or threatened by the Commission threatened; and no notice of objection any request of the Commission to the use or any state securities commission for inclusion of additional information in the Registration Statement Statement, or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission otherwise, shall have been complied with to your the reasonable satisfactionsatisfaction of the Underwriters.
(b) King & Spalding LLP, counsel for Since the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus Registration Statement:
(i) there shall not have been occurred any change or development involving, or which could be expected to involve, a material adverse effect, whether or not arising from transactions in the ordinary course of business;
(ii) the Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree; and
(iii) there shall not have occurred any change in the long- term debt or capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, Company. the effect of whichwhich on the Company, in any such case described in clause (i), (ii) or (ii)iii) above, is in the judgment written opinion of the Representatives Underwriters so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes Preferred Securities on the terms and in the manner contemplated in the Pricing Disclosure Package Registration Statement and the Prospectus.
(c) The Underwriters shall not have advised the Company that the Registration Statement or the ProspectusProspectus contains an untrue statement of fact that, in the reasonable opinion of the Underwriters or counsel for the Underwriters, is material, or omits to state a fact that, in the reasonable opinion of the Underwriters or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(d) The Underwriters shall have received an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company addressed to the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, in form and substance satisfactory to the Underwriters and counsel to the Underwriters.
(e) The Underwriters shall have received an opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, special Delaware counsel to the Offerors, addressed to the Underwriters and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that:
(i) The Trust has been duly created and is validly existing in good standing as a business trust under the Delaware Act.
(ii) Under the Declaration and the Delaware Act, the Trust has the trust power and authority to enter into and perform its obligations under the Agreement, and under the Declaration and the Delaware Act the Agreement has been duly authorized, executed and delivered by all necessary trust action on the part of the Trust.
(iii) The Declaration constitutes a valid and binding obligation of the Company and the Delaware Trustee, and is enforceable against the Company and the Delaware Trustee, in accordance with its terms subject to the effect upon the Declaration of (i) bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation, fraudulent conveyance or transfer and other similar laws relating to or affecting the rights and remedies of creditors generally, (ii) principles of equity, including applicable law relating to fiduciary duties (regardless of whether considered and applied in a proceeding in equity or at law), and (iii) the effect of applicable public policy on the enforceability of provisions relating to indemnification or contribution.
(iv) Under the Declaration and the Delaware Act, the Trust has the trust power and authority to issue and sell and perform its obligations under the Trust Securities and to purchase and hold the Convertible Debentures.
(v) The Preferred Securities have been duly authorized for issuance by the Declaration and, when issued, executed and authenticated pursuant to the Declaration and delivered and paid for in accordance with the Agreement, will be, subject to the qualifications set forth herein, fully paid and nonassessable undivided beneficial interests in the assets of the Trust and will entitle the holders thereof to the benefits of the Declaration (subject to the terms of the Declaration), except to the extent that the enforcement of the Declaration is subject to (i) bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation, fraudulent conveyance or transfer and other similar laws relating to or affecting the right and remedies of creditors generally, (ii) principles of equity, including applicable law relating to fiduciary duties (regardless of whether considered and applied in a proceeding in equity or at law), and (iii) the effect of applicable public policy on the enforceability of provisions relating to indemnification or contribution. The holders of the Preferred Securities, as beneficial owners of the Trust, will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. Such counsel may note that the holders of the Preferred Securities may be obligated, pursuant to the Declaration, (A) to provide indemnity and/or security in connection with and pay taxes or governmental charges arising from transfers or exchanges of Preferred Security certificates and the issuance of replacement Preferred Security certificates, and (B) to provide security or indemnity in connection with requests of or directions to the Institutional Trustee to exercise its rights and powers under the Declaration.
(vi) The issuance and sale by the Trust of the Trust Securities, the performance by the Trust of its obligations under the Trust Securities and the Agreement and the purchase by the Trust of the Convertible Debentures, do not violate the Declaration or any applicable law of the State of Delaware or require any approval of any governmental authority of the State of Delaware.
(vii) The holders of the Preferred Securities (other than those holders who reside or are domiciled in the State of Delaware) will have no liability for income taxes imposed by the State of Delaware solely as a result of their participation in the Trust, and the Trust will not be liable for any income tax imposed by the State of Delaware or any political subdivision or taxing authority thereof.
(f) The Underwriters shall have received an opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the Delaware Trustee and the Property Trustee, addressed to the Underwriters and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that:
(i) The Trust Company is duly incorporated and is validly existing in good standing as a banking corporation with trust powers under the laws of the State of ___________.
(ii) The Indenture Trustee has the requisite power and authority to execute, deliver and perform its obligations under the Indenture, and has taken all necessary corporate action to authorize the execution, delivery and performance by it of the Indenture.
(iii) The Preferred Securities Guarantee Trustee has the requisite power and authority to execute, deliver and perform its obligations under the Guarantee Agreement, and has taken all necessary corporate action to authorize the execution, delivery and performance by it of the Guarantee Agreement.
(iv) The Institutional Trustee has the requisite power and authority to execute and deliver the Trust Agreement, and has taken all necessary corporate action to authorize the execution and delivery of the Trust Agreement.
(v) Each of the Indenture and the Preferred Securities Guarantee Agreement has been duly executed and delivered by the Indenture Trustee and the Preferred Securities Guarantee Trustee, respectively, and constitutes a legal, valid and binding obligation of the Indenture Trustee and the Preferred Securities Guarantee Trustee, respectively, enforceable against the Indenture Trustee and the Preferred Securities Guarantee Trustee, respectively in accordance with its respective terms, except that certain payment obligations may be enforceable solely against the assets of the Trust and except that such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance and transfer or other similar laws affecting the enforcement of creditors' rights generally, and by general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether such enforceability is considered in a proceeding in equity or at law), and by the effect of applicable public policy on the enforceability of provisions relating to indemnification or contribution.
(vi) The Convertible Subordinated Debentures delivered on the date hereof have been duly authenticated by the Indenture Trustee in accordance with the terms of the Indenture.
(g) The Company Underwriters shall have complied with received an opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the provisions of Underwriters, dated the first sentence of Section 5(A)(d) hereof First Closing Date or the Second Closing Date, as the case may be, with respect to the furnishing issuance and sale of prospectuses on the business day next succeeding Preferred Securities by the date Trust, the Registration Statement and other related matters as the Underwriters may require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as they have reasonably requested for the purpose of this Agreementenabling them to pass upon such matters.
(h) On or after the Applicable Time (i) no downgrading The Underwriters shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes received on each Closing Date, a certificate of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any each of the Company’s debt securities chief executive officer or preferred stock.the chief operating officer and the chief financial officer of the Company and of one of the Administrative Trustees of the Trust, to the effect that:
(i) On The representations and warranties of the Company or after the Applicable Time Trust, as the case may be, set forth in Section 2 hereof are true and correct as of the date of such certificate, and the Company or the Trust, as the case may be, has complied with all the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such certificate;
(ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending or contemplated under the Act or under the Blue Sky Laws of any jurisdiction;
(iii) Each of the respective signatories has examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, and such documents are true and correct in all material respects; and
(iv) Since the date on which the Registration Statement was declared effective with the Commission, there shall not have occurred any change or development involving, or which could be expected to involve, a material adverse effect, whether or not arising from transactions in the ordinary course of business, except as disclosed in the Prospectus and the Registration Statement as heretofore amended or (but only if the Underwriters expressly consent thereto in writing) as disclosed in an amendment or supplement thereto filed with the Commission and delivered to the Underwriters after the execution of this Agreement; since such date and except as so disclosed or in the ordinary course of business, the Company has not incurred any liability or obligation, direct or indirect, or entered into any transaction which is material to the Company; since such date and except as so disclosed, there has not been any change in the outstanding capital stock of the following: Company, or any change that is material to the Company in the short-term debt or long-term debt of the Company; since such date and except as so disclosed, the Company has not acquired any of the Common Stock or other capital stock of the Company nor has the Company declared or paid any dividend, or made any other distribution, upon its outstanding Common Stock payable to stockholders of record on a date prior to such Closing Date; since such date and except as so disclosed, the Company has not incurred any material contingent obligations, and no material litigation is pending or threatened against the Company; and, since such date and except as so disclosed, the Company has not sustained any material loss or interference from any strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order or decree. The delivery of the certificate provided for in this subsection (h) shall be and constitute a representation and warranty of the Company and the Trust as to the facts required in the immediately foregoing clauses (i), (ii), (iii) and (iv) to be set forth in said certificate.
(i) At the time this Agreement is executed and also on each Closing Date, there shall be delivered to the Underwriters a suspension or material limitation in trading in securities generally on letter addressed to the New York Stock Exchange; (ii) a suspension or material limitation in trading in Underwriters from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, the Company’s securities on 's independent accountants, the New York Stock Exchange; first letter to be dated the date of this Agreement, the second letter to be dated the First Closing Date and the third letter (iiiif applicable) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption to be dated the Second Closing Date, which shall be in commercial banking or securities settlement or clearance services in form and substance satisfactory to the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States Underwriters and shall contain information as of a national emergency or war or (v) date within five days of the occurrence date of any other calamity or crisis or such letter. There shall not have been any change or decrease set forth in financial, political any of the letters referred to in this subsection (i) which makes it impracticable or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) inadvisable in the judgment of the Representatives makes it impracticable or inadvisable Underwriters to proceed with the public offering or the delivery purchase of the Notes on the terms and in the manner Preferred Securities as contemplated in the Pricing Disclosure Package or the Prospectushereby.
(j) The Company underwriting terms and arrangements for the offering shall have furnished or caused to be furnished to you at been cleared by the Time of Delivery NASD, and the Preferred Securities shall have been designated for inclusion on the Nasdaq National Market Security on the Nasdaq Stock Market.
(k) Such further certificates and documents as the Underwriters may reasonably request (including certificates of officers of the Company Company). All such opinions, certificates, letters and trustees documents shall be in compliance with the provisions hereof only if they are reasonably satisfactory to you the Underwriters and to ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriters. The Company shall furnish the Underwriters with such manually signed or conformed copies of such opinions, certificates, letters and documents as the Underwriters may reasonably request. If any condition to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective Underwriters' obligations hereunder to be performed at or satisfied prior to such timeor at either Closing Date is not so satisfied, as this Agreement at the election of the Underwriters will terminate upon notification to the matters set forth Company without liability on the part of any Underwriter, or the Company except for expenses to be paid by the Company pursuant to Section 6 hereof and except to the extent provided in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request10 hereof.
Appears in 1 contract
Sources: Underwriting Agreement (Dura Automotive Systems Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Republic made in any certificates pursuant to the provisions hereof, to the performance by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; and the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfactionthis Agreement.
(b) King & Spalding LLP, counsel for The Head or Acting Head of the Company, Legal Affairs Group of the Dirección General de Crédito Público of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Underwriters an opinion or opinionsRepresentatives such counsel’s written opinion, dated the Closing Date, to the effect that:
(i) This Agreement The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly Republic and validly authorizedthe Agreements constitute legal, executed and delivered by the Company and constitutes a valid and binding agreement obligations of the Company, Republic enforceable in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iiiiv) The issuance, execution and delivery of the Notes Securities have been duly and validly authorized by the Company and, when authenticated by the Indenture Trusteeauthorized, executed, issued and delivered by the Republic in accordance with the manner provided in Fiscal Agency Agreement, and, assuming due authentication and delivery by the Indenture will Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and Republic enforceable against the Company in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries Securities) of the matters set forth therein Republic that will rank equal in right of payment with all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel other present and future unsecured and unsubordinated External Indebtedness of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersRepublic;
(vi) The There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of this Agreementany of the Agreements, the issuance and sale issue of the Notes, and the consummation of the transactions and performance of the obligations Securities as contemplated herein and therein contemplated will not conflict with in the Prospectus, or result in a breach the performance or violation observance by the Republic of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Agreements or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesSecurities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the issuance due execution, delivery and sale performance by the Republic of any of the Notes Agreements or the consummation Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Decree No. 2681 of December 29, 1993, (V) authorization by Acts of the Comisión Interparlamentaria de Crédito Público adopted in its meetings held on June 20, 2002 and December 23, 2002, (VI) Resolution No. 055 dated January 20, 2003 of the Ministerio de Hacienda y Crédito Público, (VII) approval No. 3156 dated March 5, 2002, as amended by approval No. 3205 dated December 4, 2002 of the Consejo Nacional de Política Económica y Social (“CONPES”), (VIII) approval No. 3176 dated July 15, 2002 of the CONPES, (IX) approval No. 3209 dated December 19, 2002 of the CONPES, and (X) External Resolution No. 2 of 2002 and External Resolution No. 6 of December 23, 2002, issued by the Company Board of Directors of the transactions contemplated by this Agreement, except Central Bank (each of which shall be listed in such as have been obtained under counsel’s written opinion and copies of which shall be furnished to counsel to the Act and such consents, approvals, authorizations, registrations Underwriters on or qualifications as may be required under state securities or Blue Sky laws in connection with prior to the purchase and distribution of the Notes by the UnderwritersClosing Date);
(viii) The Company To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not andnecessary that any Agreement or the Securities be registered, after giving effect recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 055 of January 20, 2003, issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) a summary of the Agreements in the Diario Unico de Contratación Pública of the Republic, to satisfy the requirement for such publications, (B) notice of the external indebtedness represented by the Securities to the offering Banco de la República and sale (C) in accordance with External Resolution No. 2 of June 7, 2002 and External Resolution No. 6 of December 23, 2002, issued by the Junta Directiva del Banco de la República, the delivery of written information from the Director General of Public Credit of the Notes and Ministerio de Hacienda y Crédito Público to the application Junta Directiva del Banco de la República regarding the proposed issuance of the proceeds thereofSecurities, will not each of which shall be an “investment company,” as such term is defined in effected on or prior to the Investment Company Act of 1940, as amendedClosing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that, the Securities are held by a non-resident and non-domiciliary of the Republic.
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process; provided, that, except as provided under Article 177 of the Código Contencioso Administrativo, which does not override Articles 684 or 513 of the Código de Procedimiento Civil, of the Republic, the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 15 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 14 hereof, Section 17 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur”, subject to the provisions of Article 693 of the Código de Procedimiento Civil which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic and subject to compliance with the provisions of Article 694 of the Código de Procedimiento Civil. The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus and any further amendments and supplements theretoProspectus, as applicableamended or supplemented, made and their filing with the Commission have been duly authorized by and on behalf of the Company prior to the Time of Delivery (other than the financial statements Republic, and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements amended, has been duly executed by and on behalf of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicableRepublic, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained information in the Registration Statement, the Pricing Disclosure Package or as amended, and the Prospectus, such counsel shall confirm that he as amended or supplemented, stated on the authority of public officials of the Republic has no reason to believe that:been stated in their official capacities thereunto duly authorized;
(1xvii) each part of The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of its effective dateColombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Registration Statement, at the time it became effective, contained 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;; and
(2B) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted No information has come to state any material fact necessary in order such counsel’s attention that causes such counsel to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) believe that the Prospectus, as of its date and as of the date hereofthereof or on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Prospectus (4) any amendment except to the Registration Statement extent expressly set forth in (xvii) above) and that such counsel makes no representation that such counsel has independently verified the accuracy, completeness and fairness of such statements (except as aforesaid), and that such counsel’s opinions referred to in this subsection (b) are limited to matters of Colombian law and, insofar as the opinion required by this subsection (b) is affected by matters of United States or New York law, it may be given in reliance upon the opinion required to be filed or that there are any contracts or other documents by subsection (c) of a character required to be filed this Section 6 and that, insofar as an exhibit the foregoing opinions relate to the Registration Statement legality, validity, binding effect or required to be incorporated by reference into enforceability of any agreement or obligation of the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) aboveRepublic, such counsel need not express a belief with respect has assumed that each party to such agreement or obligation other than the Republic has satisfied those legal requirements that are applicable to it to the financial statements and related schedules and other financial information contained therein, and with respect extent necessary to clause (i) above, make such counsel need not express a belief with respect to any Form T-1agreement or obligation enforceable against it.
(dc) The Underwriters shall have received from Cleary, Gottlieb, S▇▇▇▇ & H▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, United States counsel for to the UnderwritersRepublic, such opinion or opinionsshall have furnished to the Representatives their written opinion, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.that:
(i) On or after Assuming that the Applicable Time there shall not Securities have occurred any of been duly authorized, executed, authenticated, issued and delivered against payment therefor, the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.Securities constitute va
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Shares at each Closing Date shall be subject subject, in the discretion of the Underwriters, to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and the as of such Closing Date, to the accuracy of the statements of the Company Company’s officers on and as of such Closing Date made in any certificates given pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereof; all filings (including, without limitation, the final term sheet contemplated Final Term Sheet) required by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) 433 under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for made, and no such filings by Rule 433shall have been made without the consent of the Underwriters; no stop order suspending the effectiveness of the Registration Statement or any part thereof or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and Commission; no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have has been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened received by the CommissionCompany; and all requests for additional information on the part of the Commission shall have been complied with to your the Underwriters’ reasonable satisfaction.
(b) King & Spalding LLPThe Underwriters shall be furnished with opinion letters, dated such Closing Date, of [______], [______] of the Company, that address substantially the matters set forth in Exhibit A, and [______], counsel for the Company, that address substantially the matters set forth in Exhibit B.
(c) The Underwriters shall have received from [______], counsel for the Underwriters, such opinion or opinions dated such Closing Date with respect to such matters as the Underwriters may reasonably require, and the Company shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the such counsel such documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport reasonably request for the purpose of enabling them to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respectspass upon such matters.
(cd) The Company shall have furnished to the Underwriters an opinion, dated a certificate of the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel President or any Senior Vice President or Vice President of the Company, dated such Closing Date, as to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as matters set forth in the Prospectus, paragraphs (a) and all (h) of the issued shares of capital stock of the Company have been duly this Section 7 and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any further effect that the signers of its subsidiaries, would individually or in such certificate have examined the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments this Agreement and supplements theretothat, as applicable, made by to the best of his or her knowledge:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of such Closing Date with the same effect as if made on such Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date; and
(ii) there has been no material adverse change in the Time condition of Delivery (other than the Company and its subsidiaries taken as a whole, financial statements and related schedules and other financial information contained therein and any Form T-1 Statements or otherwise, whether or not arising in the ordinary course of Eligibility and Qualification filed as exhibits to business, from that set forth or contemplated by the Registration Statement, the most recent Preliminary Prospectus, or the Prospectus.
(e) The Underwriters shall have received letters from Deloitte & Touche LLP, independent public accountants for the Company (dated the date of this Agreement and such Closing Date, respectively, and in form and substance satisfactory to the Underwriters) advising that (i) they are an independent registered public accounting firm with respect to the Company as to which such counsel need express no required by the Act and published rules and regulations of the Commission thereunder, (ii) in their opinion) , the consolidated financial statements and supplemental schedules included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus and covered by their opinion filed with the Commission under Section 13 of the Exchange Act comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the published rules and regulations of the Commission thereunder; and
, (xiii) The documents that they have performed limited procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company, a reading of the minutes of meetings of the Board of Directors, committees thereof, and of the shareholders of the Company since the date of the most recent audited financial statements included or incorporated by reference in the Prospectus Pricing Disclosure Package or any further amendment or supplement thereto made by Prospectus, inquiries of officials of the Company prior responsible for financial accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such limited review and procedures nothing came to the Time of Delivery their attention that caused them to believe that: (other than the A)(1) any material modifications should be made to any unaudited consolidated financial statements and related schedules and other of the Company included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus for them to be in conformity with generally accepted accounting principles or (2) any unaudited consolidated financial information contained thereinstatements of the Company included or incorporated by reference in the Registration Statement, as to which such counsel need express no opinion), when they became effective the Pricing Disclosure Package or were filed with the Commission, as the case may be, complied Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for applicable to Form 10-Q; and (B) with respect to the accuracy, completeness or fairness period subsequent to the date of the most recent financial statements contained included or incorporated by reference in the Pricing Disclosure Package or the Prospectus and except as set forth in or contemplated by the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason there were any adverse changes, at a specified date not more than three business days prior to believe that:
(1) each part the date of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements thereinletter, in the light capital stock of the circumstances under which they were madeCompany, not misleading;
(3) the Prospectus, as of its date and as increases in long-term debt of the date hereof, contained or contains an untrue statement of Company on a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment consolidated basis as compared to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to amounts shown on the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed most recent consolidated balance sheet included or incorporated by reference in the Pricing Disclosure Package or described the Prospectus or, as required; except thatof a specified date, there were any decreases in stockholders’ equity or net current assets of the Company on a consolidated basis as compared with respect to clauses (1)the amounts shown on the most recent consolidated balance sheet included or incorporated by reference in the Pricing Disclosure Package or the Prospectus, (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel or for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since period from the date of the latest audited most recent financial statements included or incorporated by reference in the Pricing Disclosure Package or the Prospectus to such specified date there were any loss decreases, as compared with the corresponding period in the preceding year, in operating revenues, operating income or interference net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Underwriters; and (iv) they have carried out specified procedures performed for the purpose of comparing certain specified financial information and percentages (which is limited to financial information derived from general accounting records of the Company or, to the extent not so derived, from schedules prepared by Company officers responsible for such accounting records) included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus with indicated amounts in the financial statements or accounting records of the Company and (excluding any questions of legal interpretation) have found such information and percentages to be in agreement with the relevant accounting and financial information of the Company referred to in such letter in the description of the procedures performed by them.
(f) Subsequent to the respective dates as of which information is given in the Registration Statement and the Pricing Disclosure Package, there shall not have been any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 7 which makes it impractical or inadvisable in the judgment of the Underwriters to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated by the Pricing Disclosure Package.
(g) Subsequent to the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded debt securities or preferred stock of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as such term is defined by the Commission for purposes of the Exchange Act (other than downgrades of debt securities issued by or on behalf of governmental entities for the benefit of the Company solely as a result of downgrades of ratings of any third parties insuring such debt securities) and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its business from fireoutlook with respect to, explosionits rating of the debt securities or preferred stock of or guaranteed by the Company (other than an announcement with positive implications of a possible upgrading and other than with respect to debt securities issued by or on behalf of governmental entities for the benefit of the Company solely as a result of any such announcement with respect to any third parties insuring such debt securities).
(h) Since the most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus there has been no material adverse change in the condition of the Company and its subsidiaries taken as a whole, flood financial or other calamityotherwise, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decreearising in the ordinary course of business, otherwise than as set forth or contemplated in the Pricing Prospectus, Disclosure Package and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), which is in the judgment of the Representatives Underwriters so material and adverse as to make it impracticable or inadvisable to proceed with the public offering offering, sale or the delivery of the Notes Shares on the terms and in the manner contemplated in the Pricing Disclosure Package or by this Agreement and the Prospectus.
(gi) The No Underwriter shall have advised the Company that the Registration Statement, Pricing Disclosure Package or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which in the opinion of counsel for the Underwriters is material or omits to state a fact which in the opinion of counsel for the Underwriters is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(j) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Shares; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Shares.
(k) All corporate proceedings and other legal matters incident to the authorization and validity of this Agreement and the transactions contemplated hereby shall be reasonably satisfactory to counsel to the Underwriters, and prior to the Closing Date, the Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect furnished to the furnishing of prospectuses on the business day next succeeding the date of this AgreementUnderwriters such other customary information, certificates and documents as they may reasonably request.
(hl) On or after the Applicable Time (i) no downgrading The Shares to be delivered at such Closing Date shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission been approved for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally listing on the New York Stock Exchange; (ii) a suspension , subject to official notice of issuance. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or material limitation if any of the opinions and certificates mentioned above or elsewhere in trading this Agreement shall not be satisfactory in form and substance to the Company’s securities on Underwriters and their counsel, this Agreement and all obligations of the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal Underwriters hereunder may be cancelled at, or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in at any time prior to, the United States; (iv) First Closing Date and, with respect to the outbreak or escalation of hostilities involving Option Shares, the United States or the declaration Second Closing Date by the United States Underwriters. Notice of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable cancellation shall be given to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such timein writing, as to the performance or by the Company of all of its respective obligations hereunder to be performed at telephone, telegraph or prior to such time, as to the matters set forth facsimile transmission confirmed in subsections (a) and (f) of this Section and as to such other matters as you may reasonably requestwriting.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes hereunder shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and the Closing Date, to the accuracy of the any material statements of the Company made in any certificates certificates, opinions, affidavits, written statements or letters furnished to the Representative(s) or to counsel to the Underwriters identified on Schedule I hereto (“Underwriters’ Counsel”) pursuant to the provisions hereof, to the performance by the Company of its respective obligations hereunder and to each of the following additional conditionsconditions precedent:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company filings pursuant to the Rules and Regulations and all filings required by Rule 433(d433 or Rule 424(b) under the Act, shall have been filed with the Commission made within the applicable time periods prescribed for required by such Rules, and no such filings by Rule 433; no stop will have been made without the consent of the Representative(s).
(b) No order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any part thereof Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued be in effect and no proceeding proceedings for that such purpose shall have been initiated be pending before or threatened by the Commission and Commission; no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under of the Act Rules and Regulations shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened received by the CommissionCompany; and all any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to your the reasonable satisfaction.
(b) King & Spalding LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement satisfaction of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respectsRepresentative(s).
(c) The Company shall have furnished to the Underwriters Representative(s) the opinion of the Chief Legal Officer, General Counsel or an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Associate General Counsel of the Company, addressed to the Underwriters and dated the Closing Date, to the effect that:
(i) The Company has been duly incorporated and is validly existing and in good standing as a corporation under the law of the jurisdiction of its incorporation and has full corporate power to conduct the businesses in which it is engaged as described in the Prospectus. Each of the Significant Subsidiaries that is incorporated under the laws of the United States or any State or territory thereof (a “Domestic Significant Subsidiary”) is a duly incorporated and validly existing corporation in good standing under the laws law of the State its jurisdiction of Georgiaincorporation, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with has full corporate power and authority to own its properties and conduct its business as described in the Prospectus;. Each of the Company and the Domestic Significant Subsidiaries is duly qualified to do business as a foreign corporation, is in good standing in its jurisdiction of incorporation and is duly registered as a broker-dealer, broker, dealer or investment advisor, as the case may be, in each jurisdiction in which the nature of the business conducted by it or in which the ownership or holding by lease of the properties owned or held by it requires such qualification or registration, except for such jurisdictions where the failure to so qualify, to be in good standing or to register would not have a Material Adverse Effect.
(ii) All the outstanding shares of capital stock of the Domestic Significant Subsidiaries have been duly authorized and are validly issued and outstanding and are fully paid and non-assessable and, except for directors’ qualifying shares, are owned by the Company or a subsidiary of the Company free and clear of any claims, liens, encumbrances and security interests.
(iii) The Securities and the Common Stock conform in all material respects to the descriptions thereof contained in the Prospectus.
(iv) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company (including the Securities being delivered on the Closing Date) have been duly and validly authorized and issued and issued, are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for assessable and conform to the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth description thereof contained in the Prospectus.
(v) There are no preemptive or other rights to subscribe for or to purchase, all nor any restriction upon the voting or transfer of, any Securities pursuant to the Company’s charter or by-laws or any agreement or other instrument known to such counsel.
(vi) No consent, approval, authorization, order, registration or qualification of any court or governmental agency or body is required for the execution and delivery of this Agreement and the issuance of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly Securities by the Company, free the issuance of the Conversion Shares initially issuable by the Company upon conversion of the Securities in accordance with the terms of the Certificate of Designations or compliance by the Company with all of the provisions of this Agreement and clear the Securities, except for such consents, approvals, authorizations, orders registrations or qualifications as have been obtained under the Securities Act and such as may be required under the Exchange Act under state securities laws and Blue Sky laws of all liens, encumbrances, equities or claims;any jurisdiction.
(vvii) To such counsel’s knowledge Such counsel does not know of any contracts or other documents that are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Rules and other than Regulations which have not been filed as set forth exhibits to the Registration Statement or incorporated therein by reference as permitted by the Rules and Regulations.
(viii) Except as described in the Registration Statement, the most recent Preliminary Prospectus and the Prospectus, there are no legal or governmental proceedings pending to which the Company such counsel does not know of any litigation or any of its subsidiaries is a party governmental proceeding pending or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined threatened against the Company or any of its subsidiaries andthat might reasonably be expected, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate aggregate, to have a material adverse effect on Material Adverse Effect or that is required to be disclosed in the current or future general affairsRegistration Statement, management, consolidated financial position, stockholders’ equity or results of operations of the Company most recent Preliminary Prospectus and its subsidiaries, taken as a whole; and, to the Prospectus.
(ix) To such counsel’s knowledge, no neither the Company nor any of the Domestic Significant Subsidiaries is in violation of its corporate charter or by-laws, nor in default under any agreement, indenture or instrument known to such proceedings are threatened counsel, which violation or contemplated by governmental authorities default might reasonably be expected, individually or threatened by others;in the aggregate, to have a Material Adverse Effect.
(vix) The This Agreement has been duly authorized, executed and delivered by the Company; the execution and delivery of this Agreement, the issuance and sale of the Notes, Securities and the consummation Conversion Shares initially issuable by the Company upon conversion of the transactions and performance Securities in accordance with the terms of the obligations herein Certificate of Designations or compliance by the Company with all of the provisions of this Agreement and therein contemplated the Certificate of Designations will not conflict with with, or result in a breach the creation or violation imposition of any lien, charge or encumbrance upon any of the assets of the Company or the Domestic Significant Subsidiaries pursuant to the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel and to which the Company or SunTrust Bank the Domestic Significant Subsidiaries is a party or by which the Company bound, or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any a violation of the provisions of the Restated Certificate of Incorporation, as amended, corporate charter or Byby-laws of the Company or the organizational documents of SunTrust Bank Domestic Significant Subsidiary or any statute statute, rule, regulation or any order, rule or regulation order known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank the Domestic Significant Subsidiaries or any of their respective properties;, the effect of which conflict, violation or default might reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(viixi) No consentThe Registration Statement has become effective under the Securities Act, approvaland, authorizationto the best knowledge of such counsel, order, registration or qualification of or with any court or governmental agency or body is required for no stop order suspending the issuance and sale effectiveness of the Notes Registration Statement has been issued and no proceeding for that purpose has been instituted or the consummation threatened by the Company Commission, and no notice of objection of the transactions contemplated by this Agreement, except such as have been obtained under Commission to the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution use of the Notes Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the Rules and Regulations has been received by the Underwriters;Company.
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ixxii) The Registration Statement, the Prospectus and any further amendments and supplements thereto, each amendment thereof or supplement thereto (except that no opinion need be expressed as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related notes thereto or the schedules and or other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinionor statistical data included or incorporated by reference therein) comply as to form in all material respects with the requirements of the Securities Act and the rules Rules and regulations thereunder; andRegulations.
(xxiii) The Conversion Shares initially issuable upon conversion of the Securities have been duly reserved for issuance, and such Conversion Shares, when issued in accordance with the terms of the Certificate of Designations, will be validly issued, fully paid and nonassessable.
(xiv) The Company has filed a preliminary listing application and all required supporting documents incorporated with respect to the Conversion Shares with the New York Stock Exchange, and such counsel has no reason to believe that the Conversion Shares will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution. In rendering such opinion, such counsel may rely upon opinions of local counsel satisfactory to the Representative(s) for matters not governed by reference in New York law and may rely as to matters of fact, to the Prospectus extent he or any further amendment she deems proper, upon certificates or supplement thereto made by affidavits of officers of the Company prior and public officials.
(d) The Representative(s) shall have received from Underwriters’ Counsel such opinion or opinions, dated as of the Closing Date, with respect to the Time of Delivery (other than the financial statements issuance and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements sale of the Act or the Exchange ActSecurities, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Prospectus and the Pricing Disclosure Package or and other related matters as the ProspectusRepresentative(s) may reasonably require, and the Company shall have furnished to such counsel shall confirm that he has no reason such documents as they request for the purpose of enabling them to believe that:pass upon such matters.
(1e) each part The Company shall have furnished to the Representative(s) a certificate of its Chief Executive Officer, its President, Chief Operating Officer, Chief Administrative Officer, any Executive Vice President, Senior Vice President or Vice President, and its Chief Financial Officer, its Treasurer, its Financial Controller or its Global Head of Asset Liability Management (or other officer performing substantially the same function), dated as of the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus and this Agreement, and that, to the best of their knowledge after due inquiry:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened; and no notice of objection of the Commission to the use of the Registration Statement or any post-effective date, contained an amendment thereto pursuant to Rule 401(g)(2) of the Rules and Regulations has been received by the Company; and
(iii) (w) The Registration Statement does not contain any untrue statement of a material fact or omitted omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
, (2x) the Pricing Disclosure Package, as of the Applicable Time, contained an did not contain any untrue statement of a material fact or omitted omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
, (4y) the Prospectus did not, as of its date, and does not contain any amendment untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (z) since the applicable Effective Date of the Registration Statement is there has not occurred any event required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b))an amended or supplemented Prospectus which has not been so set forth.
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement (Lehman Brothers Holdings Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable TimeTime of Sale, the date hereof Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus Final Prospectus, and any supplement thereto, shall have been filed with in the Commission pursuant to manner and within the time period required by Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof); the final term sheet contemplated by Section 5(A)(a5(b) hereofhereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any part thereof notice by the Commission objecting to its use shall have been issued and no proceeding proceedings for that purpose shall have been initiated instituted or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfactionthreatened.
(b) King & Spalding ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinionsRepresentatives its opinion, dated the Closing DateDate and addressed to the Representatives, to the effect that:
(i) This Agreement the Company has been duly authorizedorganized and is validly subsisting as a corporation under the laws of the Commonwealth of Pennsylvania, executed with full corporate power and delivered by authority under its articles of incorporation to own or lease, as the Companycase may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
(ii) The Indenture has been duly the Securities are in due and validly authorized, executed proper form; the issue and delivered sale of the Securities by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement the terms of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes this Agreement have been duly and validly authorized by all necessary corporate action on the part of the Company and by orders duly entered by the Pennsylvania Public Utility Commission. The Securities have been duly executed and delivered by the duly authorized officers of the Company and, when authenticated and delivered by the Indenture TrusteeTrustee against payment therefor, executed, issued and delivered in the manner provided in the Indenture will constitute legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as their terms subject to enforcement (1) the effect of remedies, to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and conveyance, fraudulent transfer, marshalling or similar laws affecting the creditors’ rights and remedies of creditors generally, generally and the effects of (2) general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(iii) the Indenture has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by duly authorized officers of the Company. The Indenture constitutes a legal, valid and binding instrument, enforceable in accordance with its terms except as the enforceability thereof may be limited by (1) the effect of applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer, marshalling or similar laws affecting creditors’ rights and remedies generally and (2) general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether such enforceability is considered in a proceeding in equity or at law). The Indenture has been duly qualified under the Trust Indenture Act;
(iv) The statements set forth in the Pricing Disclosure Package and Indenture constitutes a valid mortgage lien of record upon all real property presently owned by the Prospectus under the caption “Description of the Notes” insofar Company described therein as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished subject to the Underwriters an opinionlien thereof (other than properties expressly excepted therefrom, dated properties properly released from the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel lien thereof pursuant to the terms thereof and substantially all of the Company’s leaseholds), and the Securities are secured by a valid and, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing extent that it may be perfected by filing under the laws Uniform Commercial Code, a perfected security interest in such of the State personal property of Georgia, and the Company as is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
Indenture, whether such personal property is now owned or hereinafter acquired by the Company (ii) The Company has an authorized capitalization other than properties expressly excepted therefrom; properties released from the security interest created thereby; “proceeds” as set forth defined in the Prospectus, and all Uniform Commercial Code to the extent limited by the terms of Section 9-315 of the issued shares of capital stock Uniform Commercial Code; after-acquired property subject to Section 552 of the Company have been duly Federal Bankruptcy Code; property sold to a buyer in the ordinary course of business, licensed to a licensee in the ordinary course of business or leased to a lessee in the ordinary course of business; insurance policies (except to the extent that payments thereunder are “proceeds,” as defined in the Uniform Commercial Code); and validly authorized and issued and contract rights or general intangibles which by their terms, or by law, are fully paid and non-assessable;
(iii) The Company has been duly qualified not assignable); such counsel need express no opinion as a foreign corporation to any actions that may be required to be taken periodically under the Uniform Commercial Code or other applicable law in order for the transaction validity or perfection of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure security interest to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claimsmaintained;
(v) To this Agreement has been duly authorized, executed and delivered by the Company;
(vi) such counsel is not representing the Company in any pending litigation in which it is a named defendant, or in any litigation that is overtly threatened in writing against it by a potential claimant, that challenges the validity or enforceability of, or seeks to enjoin the performance of, the transactions contemplated by this Agreement, the Indenture and the Securities and, to the knowledge of such counsel’s knowledge and other than as set forth in the Prospectus, there are no material pending legal or governmental proceedings pending to which the Company or any of its subsidiaries subsidiary is a party or of and which are required to be set forth in the documents incorporated by reference in the Registration Statement and Final Prospectus other than those referred to in such documents; and the statements in any property Preliminary Prospectus and the Final Prospectus under the heading “Description of the Company or any of its subsidiaries is Bonds and First and Refunding Mortgage” fairly summarize the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and matters therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesdescribed;
(vii) the PAPUC has entered an appropriate order authorizing the Company to issue and sell the Securities as contemplated herein; such order is in full force and effect and, to the best of such counsel’s knowledge after due inquiry, no proceeding has been initiated upon appeal from or to review the effectiveness of such order. No other consent, approval, authorization, order, registration filing with or qualification order of or with any court or state or federal governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of in connection with the transactions contemplated by in this Agreement, the Indenture or the Securities, except such as have been obtained under the Act Act, the Trust Indenture Act, and from the PAPUC, and such consents, approvals, authorizations, registrations or qualifications as may be required under state the blue sky or securities or Blue Sky laws of any jurisdiction in connection with the purchase and distribution sale of the Notes Securities by the UnderwritersUnderwriters in the manner contemplated in this Agreement and the Final Prospectus and such other approvals (specified in such opinion) as have been obtained;
(viii) The Company is not and, after giving effect to the offering and sale Registration Statement has become effective under the Act; any required filing of the Notes Base Prospectus, any Preliminary Prospectus and the application of the proceeds thereofFinal Prospectus, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicablepursuant 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, made no stop order suspending the effectiveness of the Registration Statement or any notice by the Company prior Commission objecting to its use has been issued, no proceedings for that purpose have been instituted or threatened, and the Time of Delivery Registration Statement (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they as of the date the Registration Statement originally became effective or were filed under the Act, and together with the CommissionPreliminary Prospectus and the final Prospectus, as of each “new effective date” with respect to the Notes pursuant to and within the meaning of Rule 430B(f)(2) under the Act, complied, and the Preliminary Prospectus and the final Prospectus (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion), as of their respective dates, complied, and the final Prospectus (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion), as of the date hereof, complies, in each case may be, complied as to form in all material respects with the applicable requirements of the Act or Act, the Exchange ActAct and the Trust Indenture Act and the respective rules thereunder;
(ix) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus, will not be required to register as an “investment company” under the Investment Company Act of 1940, as applicableamended;
(x) the execution and delivery of this Agreement, the Indenture and the Securities, the consummation of any other transactions contemplated by this Agreement, the Indenture and the Securities, and the rules and regulations fulfillment of the Commission thereunder. In additionterms hereof or thereof do not, although such counsel need not pass upon and the performance of the obligations hereunder and thereunder will not, (1) violate the articles of incorporation and bylaws of the Company; (2) violate any statute, law, rule, regulation, judgment, order or assume decree applicable to the Company or any responsibility of its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its subsidiaries or any of their properties; or (3) conflict with, breach or result in a default under the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of its subsidiaries is a party or bound or to which their property is subject that is listed in the Exhibit Index to the Company’s Form 10-K for the accuracyfiscal year ended December 31, completeness 2017, Forms 10-Q for the fiscal quarters ended March 31, 2018 and June 30, 2018 and Forms 8-K filed with the Commission during the period between January 1, 2018 and the Closing Date or fairness result in the creation or imposition of any security interest in or lien or encumbrance upon, any property or asset of the statements contained Company or any of its subsidiaries pursuant to any item referred to in this clause (3) (other than the Registration Statementlien of the Indenture);
(xi) the discussions in any Preliminary Prospectus and the Final Prospectus in each case under the caption “Certain United States Federal Income Tax Consequences” are fair and accurate summaries of the matters addressed therein, based upon current law and the Pricing Disclosure Package assumptions stated or the Prospectusreferred to therein, and such counsel shall confirm that he these discussions, to the extent they constitute matters of federal income tax law or legal conclusions with respect thereto, represent its opinion; and
(xii) such counsel has no reason to believe that:
that (1) each part of on the Effective Date, the Registration Statement, as of its effective date, Statement contained an any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
, (2) the Pricing Disclosure Package, as of the Applicable TimeTime of Sale, the Disclosure Package contained an any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
misleading or (3) the Prospectus, as of its date and as of on the date hereofClosing Date, contained the Final Prospectus included or contains an includes any untrue statement of a material fact or omitted or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
misleading (4) any amendment to the Registration Statement is required to be filed or that there are any contracts or in each case, other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to than the financial statements and related schedules and other financial information contained therein, and with respect as to clause (i) abovewhich such counsel need express no opinion); In rendering such opinion, such counsel need not express a belief with respect may rely (A) as to matters involving the application of laws of any Form T-1jurisdiction other than the Commonwealth of Pennsylvania or the Federal laws of 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 Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(dc) The Underwriters Representatives shall have received from ▇▇▇▇▇▇▇▇ Winston & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to such the issuance and sale of the Securities, the Indenture, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriters Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. ▇▇▇▇▇▇▇▇ In rendering such opinion, Winston & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trusteerely, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Lawthe laws of the State of Pennsylvania, upon the opinion of King & Spalding LLP and counsel for the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant Company referred to in Section 6(b) and 6(c), respectively.
(ed) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP The Company shall have furnished to you the Representatives a letter certificate of the Company, signed by the Chairman of the Board or lettersthe President and the principal financial or accounting officer of the Company, dated the respective dates of delivery thereof, in form and substance satisfactory to youClosing Date, to the effect set forth in Annex I (a form that the signers of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendment or supplement thereto and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Time of Delivery, is attached Closing Date with the same effect as Annex I(b)).if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(fii) Neither no stop order suspending the Company nor effectiveness of the Registration Statement or any of notice by the Commission objecting to its Significant Subsidiaries shall use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iiii) sustained since the date of the latest audited most recent financial statements included or incorporated by reference in the Pricing Disclosure Package and the Final Prospectus (exclusive of any loss or interference with its business from firesupplement thereto), explosionthere has been no Material Adverse Effect, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than except as set forth in or contemplated in the Pricing ProspectusDisclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives.
(iif) since Subsequent to the respective Execution Time or, if earlier, the dates as of which information is given in the Pricing Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the capital stock letter or long-term debt letters referred to in paragraph (e) of the Company this Section 6 or any of its subsidiaries or (ii) any change, or any development involving a prospective change, in or affecting the general affairsfinancial condition, management, financial position, stockholders’ equity business or results of operations properties of the Company and its subsidiaries, otherwise than taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Pricing Prospectus, Disclosure Package or the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any such case described referred to in clause (i) or (ii)) above, is is, in the sole judgment of the Representatives Representatives, so material and adverse as to make it impracticable impractical or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable TimeTime of Sale, the date hereof Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus Final Prospectus, and any supplement thereto, shall have been filed with in the Commission pursuant to manner and within the time period required by Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof); the final term sheet contemplated by Section 5(A)(a5(b) hereofhereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any part thereof notice by the Commission objecting to its use shall have been issued and no proceeding proceedings for that purpose shall have been initiated instituted or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfactionthreatened.
(b) King & Spalding ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinionsRepresentatives its opinion, dated the Closing DateDate and addressed to the Representatives, to the effect that:
(i) This Agreement the Company has been duly authorizedorganized and is validly subsisting as a corporation under the laws of the Commonwealth of Pennsylvania, executed with full corporate power and delivered by authority under its articles of incorporation to own or lease, as the Companycase may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
(ii) The Indenture has been duly the Securities are in due and validly authorized, executed proper form; the issue and delivered sale of the Securities by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement the terms of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes this Agreement have been duly and validly authorized by all necessary corporate action on the part of the Company and by orders duly entered by the Pennsylvania Public Utility Commission. The Securities have been duly executed and delivered by the duly authorized officers of the Company and, when authenticated and delivered by the Indenture TrusteeTrustee against payment therefor, executed, issued and delivered in the manner provided in the Indenture will constitute legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as their terms subject to enforcement (1) the effect of remedies, to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and conveyance, fraudulent transfer, marshalling or similar laws affecting the creditors’ rights and remedies of creditors generally, generally and the effects of (2) general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(iii) the Indenture has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by duly authorized officers of the Company. The Indenture constitutes a legal, valid and binding instrument, enforceable in accordance with its terms except as the enforceability thereof may be limited by (1) the effect of applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer, marshalling or similar laws affecting creditors’ rights and remedies generally and (2) general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether such enforceability is considered in a proceeding in equity or at law). The Indenture has been duly qualified under the Trust Indenture Act;
(iv) The statements set forth in the Pricing Disclosure Package and Indenture constitutes a valid mortgage lien of record upon all real property presently owned by the Prospectus under the caption “Description of the Notes” insofar Company described therein as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished subject to the Underwriters an opinionlien thereof (other than properties expressly excepted therefrom, dated properties properly released from the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel lien thereof pursuant to the terms thereof and substantially all of the Company’s leaseholds), and the Securities are secured by a valid and, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing extent that it may be perfected by filing under the laws Uniform Commercial Code, a perfected security interest in such of the State personal property of Georgia, and the Company as is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
Indenture, whether such personal property is now owned or hereinafter acquired by the Company (ii) The Company has an authorized capitalization other than properties expressly excepted therefrom; properties released from the security interest created thereby; “proceeds” as set forth defined in the Prospectus, and all Uniform Commercial Code to the extent limited by the terms of Section 9-315 of the issued shares of capital stock Uniform Commercial Code; after-acquired property subject to Section 552 of the Company have been duly Federal Bankruptcy Code; property sold to a buyer in the ordinary course of business, licensed to a licensee in the ordinary course of business or leased to a lessee in the ordinary course of business; insurance policies (except to the extent that payments thereunder are “proceeds,” as defined in the Uniform Commercial Code); and validly authorized and issued and contract rights or general intangibles which by their terms, or by law, are fully paid and non-assessable;
(iii) The Company has been duly qualified not assignable); such counsel need express no opinion as a foreign corporation to any actions that may be required to be taken periodically under the Uniform Commercial Code or other applicable law in order for the transaction validity or perfection of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure security interest to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claimsmaintained;
(v) To this Agreement has been duly authorized, executed and delivered by the Company;
(vi) such counsel is not representing the Company in any pending litigation in which it is a named defendant, or in any litigation that is overtly threatened in writing against it by a potential claimant, that challenges the validity or enforceability of, or seeks to enjoin the performance of, the transactions contemplated by this Agreement, the Indenture and the Securities and, to the knowledge of such counsel’s knowledge and other than as set forth in the Prospectus, there are no material pending legal or governmental proceedings pending to which the Company or any of its subsidiaries subsidiary is a party or of and which are required to be set forth in the documents incorporated by reference in the Registration Statement and Final Prospectus other than those referred to in such documents; and the statements in any property Preliminary Prospectus and the Final Prospectus under the heading “Description of the Company or any of its subsidiaries is Bonds and First and Refunding Mortgage” fairly summarize the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and matters therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesdescribed;
(vii) the PAPUC has entered an appropriate order authorizing the Company to issue and sell the Securities as contemplated herein; such order is in full force and effect and, to the best of such counsel’s knowledge after due inquiry, no proceeding has been initiated upon appeal from or to review the effectiveness of such order. No other consent, approval, authorization, order, registration filing with or qualification order of or with any court or state or federal governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of in connection with the transactions contemplated by in this Agreement, the Indenture or the Securities, except such as have been obtained under the Act Act, the Trust Indenture Act, and from the PAPUC, and such consents, approvals, authorizations, registrations or qualifications as may be required under state the blue sky or securities or Blue Sky laws of any jurisdiction in connection with the purchase and distribution sale of the Notes Securities by the UnderwritersUnderwriters in the manner contemplated in this Agreement and the Final Prospectus and such other approvals (specified in such opinion) as have been obtained;
(viii) The Company is not and, after giving effect to the offering and sale Registration Statement has become effective under the Act; any required filing of the Notes Base Prospectus, any Preliminary Prospectus and the application of the proceeds thereofFinal Prospectus, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicablepursuant 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, made no stop order suspending the effectiveness of the Registration Statement or any notice by the Company prior Commission objecting to its use has been issued, no proceedings for that purpose have been instituted or threatened, and the Time of Delivery Registration Statement (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they as of the date the Registration Statement originally became effective or were filed under the Act, and together with the CommissionPreliminary Prospectus and the final Prospectus, as of each “new effective date” with respect to the Notes pursuant to and within the meaning of Rule 430B(f)(2) under the Act, complied, and the Preliminary Prospectus and the final Prospectus (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion), as of their respective dates, complied, and the final Prospectus (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion), as of the date hereof, complies, in each case may be, complied as to form in all material respects with the applicable requirements of the Act or Act, the Exchange ActAct and the Trust Indenture Act and the respective rules thereunder;
(ix) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus, will not be required to register as an “investment company” under the Investment Company Act of 1940, as applicableamended;
(x) the execution and delivery of this Agreement, the Indenture and the Securities, the consummation of any other transactions contemplated by this Agreement, the Indenture and the Securities, and the rules and regulations fulfillment of the Commission thereunder. In additionterms hereof or thereof do not, although such counsel need not pass upon and the performance of the obligations hereunder and thereunder will not, (1) violate the articles of incorporation and bylaws of the Company; (2) violate any statute, law, rule, regulation, judgment, order or assume decree applicable to the Company or any responsibility of its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its subsidiaries or any of their properties; or (3) conflict with, breach or result in a default under the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of its subsidiaries is a party or bound or to which their property is subject that is listed in the Exhibit Index to the Company’s Form 10-K for the accuracyfiscal year ended December 31, completeness 2016, Forms 10-Q for the fiscal quarters ended March 31, 2017 and June 30, 2017 and Forms 8-K filed with the Commission during the period between January 1, 2017 and the Closing Date or fairness result in the creation or imposition of any security interest in or lien or encumbrance upon, any property or asset of the statements contained Company or any of its subsidiaries pursuant to any item referred to in this clause (3) (other than the Registration Statementlien of the Indenture);
(xi) the discussions in any Preliminary Prospectus and the Final Prospectus in each case under the caption “Certain United States Federal Income Tax Consequences” are fair and accurate summaries of the matters addressed therein, based upon current law and the Pricing Disclosure Package assumptions stated or the Prospectusreferred to therein, and such counsel shall confirm that he these discussions, to the extent they constitute matters of federal income tax law or legal conclusions with respect thereto, represent its opinion; and
(xii) such counsel has no reason to believe that:
that (1) each part of on the Effective Date, the Registration Statement, as of its effective date, Statement contained an any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
, (2) the Pricing Disclosure Package, as of the Applicable TimeTime of Sale, the Disclosure Package contained an any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
misleading or (3) the Prospectus, as of its date and as of on the date hereofClosing Date, contained the Final Prospectus included or contains an includes any untrue statement of a material fact or omitted or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
misleading (4) any amendment to the Registration Statement is required to be filed or that there are any contracts or in each case, other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to than the financial statements and related schedules and other financial information contained therein, and with respect as to clause (i) abovewhich such counsel need express no opinion); In rendering such opinion, such counsel need not express a belief with respect may rely (A) as to matters involving the application of laws of any Form T-1jurisdiction other than the Commonwealth of Pennsylvania or the Federal laws of 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 Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(dc) The Underwriters Representatives shall have received from ▇▇▇▇▇▇▇▇ Winston & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to such the issuance and sale of the Securities, the Indenture, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriters Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. ▇▇▇▇▇▇▇▇ In rendering such opinion, Winston & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trusteerely, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Lawthe laws of the State of Pennsylvania, upon the opinion of King & Spalding LLP and counsel for the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant Company referred to in Section 6(b) and 6(c), respectively.
(ed) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP The Company shall have furnished to you the Representatives a letter certificate of the Company, signed by the Chairman of the Board or lettersthe President and the principal financial or accounting officer of the Company, dated the respective dates of delivery thereof, in form and substance satisfactory to youClosing Date, to the effect set forth in Annex I (a form that the signers of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendment or supplement thereto and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Time of Delivery, is attached Closing Date with the same effect as Annex I(b)).if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(fii) Neither no stop order suspending the Company nor effectiveness of the Registration Statement or any of notice by the Commission objecting to its Significant Subsidiaries shall use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iiii) sustained since the date of the latest audited most recent financial statements included or incorporated by reference in the Pricing Disclosure Package and the Final Prospectus (exclusive of any loss or interference with its business from firesupplement thereto), explosionthere has been no Material Adverse Effect, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than except as set forth in or contemplated in the Pricing ProspectusDisclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives.
(iif) since Subsequent to the respective Execution Time or, if earlier, the dates as of which information is given in the Pricing Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the capital stock letter or long-term debt letters referred to in paragraph (e) of the Company this Section 6 or any of its subsidiaries or (ii) any change, or any development involving a prospective change, in or affecting the general affairsfinancial condition, management, financial position, stockholders’ equity business or results of operations properties of the Company and its subsidiaries, otherwise than taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Pricing Prospectus, Disclosure Package or the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any such case described referred to in clause (i) or (ii)) above, is is, in the sole judgment of the Representatives Representatives, so material and adverse as to make it impracticable impractical or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The several obligations of the Underwriters to purchase the Notes shall be hereunder are subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company Transferor of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have become effective not later than 5:30 P.M., New York City time, on February 21, 1997, or such later date as shall have been consented to by the Representative; prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment shall have been issued, and no proceedings for such purpose shall have been instituted or threatened by the Commission; if required, the Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(A)(a6(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.the satisfaction of the Representative;
(b) King the representations and warranties of the Transferor and the Servicer contained herein are true and correct on and as of the Closing Date as if made on and as of the Closing Date and the representations and warranties of the Transferor and the Servicer in the Pooling and Servicing Agreement will be true and correct on the Closing Date; and the Transferor shall have complied with all agreements and all conditions on its part to be performed or satisfied hereunder and under the Basic Documents at or prior to the Closing Date;
(c) subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of (i) any intended or potential downgrading or (ii) any review or possible change that does not indicate an improvement, in the rating accorded any securities of the Transferor by any "nationally recognized statistical rating organization", as such term is defined for purposes of Rule 436(g)(2) under the Securities Act or any public announcement that any such organization has under surveillance or review its rating of any such securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating);
(d) since the date hereof there shall not have been any material adverse change or any development involving a prospective material adverse change, in or affecting the general affairs, business, prospects, management, financial position, stockholder's equity or results of operations of the Transferor or the Servicer, otherwise than as set forth or contemplated in the Prospectus, the effect of which in the judgment of the Representative makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Certificates on the Closing Date on the terms and in the manner contemplated in the Prospectus;
(e) the Representative shall have received on and as of the Closing Date a certificate of an executive officer of the Transferor with specific knowledge about the Transferor's financial matters, satisfactory to the Representative to the effect set forth in subsections (a) through (d) of this Section;
(f) ▇▇▇▇▇▇ & Spalding ▇▇▇▇▇▇▇ LLP, counsel for the CompanyTransferor and Servicer, or other counsel satisfactory to the Representative shall have furnished to the Underwriters an opinion or opinionsRepresentative their written opinion, dated the Closing Date, in form and substance satisfactory to the Representative, to the effect that:
(i) This Agreement the Transferor has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated organized and is validly existing as a corporation national banking association in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amendedUnited States, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company Transferor has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties properties, or conducts any business business, so as to require such qualification or is subject to no material liability or disability by reason of qualification, other than where the failure to be so qualified or in any such jurisdictiongood standing would not have a material adverse effect on the Transferor or the transactions contemplated herein or in the Basic Documents;
(iviii) SunTrust Bank has been the Servicer is duly incorporated and is validly existing as a corporation in good standing under the laws of the State state of Georgia; Minnesota, with power and except authority (corporate and other) to own its properties and conduct its business as set forth described in the Prospectus;
(iv) the Servicer has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties, all of or conducts any business, so as to require such qualification, other than where the issued shares of capital stock of SunTrust Bank are owned directly failure to be so qualified or indirectly by in good standing would not have a material adverse effect on the Company, free and clear of all liens, encumbrances, equities Servicer or claimsthe transactions contemplated herein or in the Basic Documents;
(v) To such counsel’s knowledge and other than as set forth or contemplated in the Prospectus, there are no legal or governmental investigations, actions, suits or proceedings pending or, to which the Company best of such counsel's knowledge, threatened against or affecting the Transferor or the Servicer or any of its subsidiaries properties, or to which the Transferor or Servicer is or may be a party or of to which any property of the Company Transferor or Servicer is or may be the subject (i) that are required to be disclosed in the Registration Statement or the Prospectus, (ii) asserting the invalidity of this Agreement or of any of the Basic Documents, (iii) seeking to prevent the issuance of the Certificates or the consummation of any of the transactions contemplated by this Agreement or any of the Basic Documents, (iv) that may adversely affect the federal or state income, excise, franchise or similar tax attributes of the Certificates, (v) that could materially and adversely affect the performance by the Transferor or the Servicer of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company obligations under this Agreement or any of its subsidiaries andthe Basic Documents or (vi) which, if determined adversely to the Company Transferor or any of its subsidiariesthe Servicer, would could individually or in the aggregate reasonably be expected to have a material adverse effect on the current or future general affairs, business, prospects, management, consolidated financial position, stockholders’ ' equity or results of operations of the Company and its subsidiaries, Transferor or the Servicer taken as a whole; and, whole or that would reasonably be expected to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersmaterially adversely affect the interests of the holders of the Certificates;
(vi) The execution such counsel does not know of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or required to be filed as an exhibit to the Registration Statement that are not described or filed or as required;
(vii) this Agreement has been duly authorized, executed and delivery of delivered by the Transferor and the Servicer;
(viii) the Certificates have been duly and validly authorized and, when such Certificates are duly and validly executed and authenticated by the Trustee and delivered in accordance with the Pooling and Servicing Agreement and delivered and paid for pursuant to this Agreement, will be validly issued and outstanding and entitled to the issuance benefits and security afforded by the Pooling and Servicing Agreement;
(ix) each of the Basic Documents has been duly authorized, executed and delivered by the Transferor and the Servicer, as applicable, and constitutes a valid and binding obligation of each of the Transferor and the Servicer enforceable against each of the Transferor and the Servicer in accordance with their terms, subject as to enforceability to applicable bankruptcy, insolvency, reorganization, conservatorship, receivership, liquidation or other similar laws affecting the enforcement of creditors rights generally and to general equitable principles;
(x) each of the Transferor and the Servicer is not, nor with the giving of notice or lapse of time or both would be, in violation of or in default under, its articles of association or bylaws or any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Transferor or the Servicer is a party or by which it or any of its properties is bound, except for violations and defaults which individually and in the aggregate are not material to the Transferor or the Servicer and its subsidiaries taken as a whole or to the holders of the Certificates; the issue and sale of the NotesCertificates and the execution, delivery and performance by the Transferor or the Servicer, as applicable, of the Certificates, the Basic Documents and this Agreement and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company Transferor or SunTrust Bank the Servicer is a party or by which the Company Transferor or SunTrust Bank the Servicer is bound or to which any of the property or assets of the Company Transferor or SunTrust Bank the Servicer is subject, nor will any such actions action result in any violation of the provisions of the Restated Certificate articles of Incorporation, as amendedassociation, or By-laws the bylaws of the Company Transferor or the organizational documents of SunTrust Bank Servicer or any applicable law or statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the CompanyTransferor or the Servicer, SunTrust Bank or any of their its properties;
(viixi) No no consent, approval, authorization, order, license, registration or qualification of or with any court or governmental agency or body is required for the issuance issue and sale of the Notes Certificates or the consummation by the Company of the other transactions contemplated by this AgreementAgreement or the Basic Documents, except such as have been obtained under the Act and such consents, approvals, authorizations, orders, licenses, registrations or qualifications as have been obtained under the Securities Act, and as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes Certificates by the UnderwritersUnderwriters and the filing of any financing statements required to perfect the Trust's interest in the Receivables;
(viiixii) The Company is not andthe statements in the Prospectus under the heading "Description of Certificates" insofar as such statements constitute a summary of the legal matters, after giving effect documents or proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents or proceedings; the statements in the Registration Statement and the Prospectus under the headings "Federal Income Tax Consequences", "State and Local Tax Consequences", "ERISA Considerations", "Certain Legal Aspects of the Receivables" and "Legal Matters", to the offering extent they constitute descriptions of matters of law or legal conclusions with respect thereto, have been prepared or reviewed by such counsel and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined are correct in the Investment Company Act of 1940, as amendedall material respects;
(ixxiii) The the Registration StatementStatement has become effective under the Securities Act and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or threatened by the Commission; such counsel is of the opinion that the Registration Statement and the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery thereto (other than the any accounting, statistical or financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statementdata included therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act Securities Act; and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior nothing has come to the Time of Delivery such counsel's attention that would cause it to believe that (other than the accounting, statistical or financial statements and related schedules and other financial information contained data included therein, as to which such counsel need express no opinion), when they belief) the Registration Statement and the prospectus included therein at the time the Registration Statement became effective or were filed with and at the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume Closing Date contained any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained 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;
(2) , and that the Pricing Disclosure PackageProspectus, as of the Applicable Timeamended or supplemented, if applicable, contained an any untrue statement of a material fact or omitted to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3xiv) the ProspectusTransferor and Servicer possess or have obtained all licenses, permits, certificates, consents, orders, approvals and other authorizations from, and have made all declarations and filings with, all federal, state, local and other governmental authorities and all courts and other tribunals, domestic or foreign, necessary to own or lease, as of the case may be, and to operate its date properties and to carry on its business as conducted as of the date hereof, contained and neither the Transferor nor the Servicer has received any actual notice of any proceeding relating to revocation or contains an untrue statement modification of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements thereinsuch license, in the light of the circumstances under which they were madepermit, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts certificate, consent, order, approval or other documents of a character required to be filed authorization, except as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or and the Prospectus which are not filed or incorporated by reference or described as requiredProspectus; except that, and each of the Transferor and Servicer is in compliance with respect to clauses (1), (2), (3) all laws and (4) above, such counsel need not express a belief with respect regulations relating to the financial statements conduct of its business as conducted as of the date of the Prospectus;
(xv) the Transferor has full power and related schedules authority to sell and other financial information contained thereinassign the Receivables to the Trust pursuant to the Pooling and Servicing Agreement and has duly authorized such sale and assignment to the Trust by all necessary corporate action;
(xvi) by assignment and delivery of each of the Receivables to the Trust as of the Closing Date, the Transferor will transfer title in the Receivables to the Trust, subject to no prior lien, mortgage, security interest, pledge, adverse claim, change or encumbrance;
(xvii) the Pooling and Servicing Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended, and with respect the Trust is not required to clause (i) abovebe registered as an "investment company" under the Investment Company Act of 1940, such counsel need not express a belief with respect to any Form T-1.as amended;
(dxviii) The Underwriters shall the Receivables are either "accounts" or "general intangibles" as defined in the UCC;
(xix) all filings necessary under applicable law to perfect the transfer of the Receivables by the Transferor to the Trustee as Trustee of the Trust pursuant to the Pooling and Servicing Agreement have received from ▇▇▇been made and no other filings (other than the filing of continuation statements) need be made to maintain the perfection of the transfer of the Receivables to the Trustee as Trustee of the Trust pursuant to the Pooling and Servicing Agreement; and
(xx) the Certificates, this Agreement, the Pooling and Servicing Agreement and the Supplement each conform in all material respects with the descriptions thereof contained in the Registration Statement and Prospectus;
(g) on the date hereof and also on the Closing Date, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you;
(h) the Representative shall have received on and as of the Closing Date an opinion of ▇▇▇▇▇▇▇, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the effect set forth in Annex I (a form Underwriters, with respect to the validity of the executed copy of Pooling and Servicing Agreement and the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) Certificates and a form of the executed letter to be delivered on the effective date of any post-effective amendment with respect to the Registration Statement, the Prospectus and other related matters as of the Time of DeliveryRepresentative may reasonably request, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries and such counsel shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than received such papers and information as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any they may reasonably request to enable them to pass upon such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.matters;
(i) On or after ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Applicable Time there Transferor, shall not have occurred any of furnished to the following: Representative their written opinion, dated the Closing Date, with respect to certain state and federal income tax matters, in form and substance satisfactory to the Representative, to the effect that:
(i) a suspension the statements in the Registration Statement under the heading "Federal Income Tax Consequences" and the summary thereof under the heading "Summary--Tax Status," to the extent they constitute matters of federal law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct in all material limitation in trading in securities generally on the New York Stock Exchange; respects;
(ii) a suspension or material limitation in trading in for federal income tax purposes, the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration Certificates will be characterized as indebtedness secured by the United States of a national emergency or war or (v) the occurrence of Receivables and any other calamity or crisis or any change in financialTrust assets, political or economic conditions in and the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to Trust will not be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you characterized as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.an "associ
Appears in 1 contract
Sources: Underwriting Agreement (First Bank Corporate Card Master Trust)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Republic made in any certificates pursuant to the provisions hereof, to the performance by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; and the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfactionthis Agreement.
(b) King & Spalding LLP, counsel for The Head or Acting Head of the Company, Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Underwriters an opinion or opinionsRepresentatives such counsel’s written opinion, dated the Closing Date, to the effect that:
(i) This Agreement The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly Republic and validly authorizedthe Agreements constitute legal, executed and delivered by the Company and constitutes a valid and binding agreement obligations of the Company, Republic enforceable in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iiiiv) The issuance, execution and delivery of the Notes Securities have been duly and validly authorized by the Company and, when authenticated by the Indenture Trusteeauthorized, executed, issued and delivered by the Republic in accordance with the manner provided in Fiscal Agency Agreement, and, assuming due authentication and delivery by the Indenture will Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and Republic enforceable against the Company in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries Securities) of the matters set forth therein Republic that will rank equal in right of payment with all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel other present and future unsecured and unsubordinated External Indebtedness of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersRepublic;
(vi) The There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of this Agreementany of the Agreements, the issuance and sale issue of the Notes, and the consummation of the transactions and performance of the obligations Securities as contemplated herein and therein contemplated will not conflict with in the Prospectus, or result in a breach the performance or violation observance by the Republic of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Agreements or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesSecurities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the issuance due execution, delivery and sale performance by the Republic of any of the Notes Agreements or the consummation Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Decree No. 2681 of December 29, 1993, (VI) authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meeting held on January 19, 2005 and June 16, 2005, (VII) Resolution No. 1634 dated July 11, 2005 of the Ministerio de Hacienda y Crédito Público, (VIII) approval No. 3317 of November 29, 2004 of the Consejo Nacional de Política Económica y Social and (IX) External Resolution No. 8 of November 19, 2004, issued by the Company Board of Directors of the transactions contemplated by this Agreement, except Central Bank (each of which shall be listed in such as have been obtained under counsel’s written opinion and copies of which shall be furnished to counsel to the Act and such consents, approvals, authorizations, registrations Underwriters on or qualifications as may be required under state securities or Blue Sky laws in connection with prior to the purchase and distribution of the Notes by the UnderwritersClosing Date);
(viii) The Company To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not andnecessary that any Agreement or the Securities be registered, after giving effect recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 1634 dated July 11, 2005, issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) a summary of the Agreements in the Diario Unico de Contratación Pública of the Republic, to satisfy the requirement for such publications, (B) notice of the external indebtedness represented by the Securities to the offering Banco de la República and sale (C) in accordance with External Resolution No. 8 of November 19, 2004, issued by the Junta Directiva del Banco de la República, the delivery of written information from the Director General of Public Credit of the Notes and Ministerio de Hacienda y Crédito Público to the application Junta Directiva del Banco de la República regarding the proposed issuance of the proceeds thereofSecurities, will not each of which shall be an “investment company,” as such term is defined in effected on or prior to the Investment Company Act of 1940, as amendedClosing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that, the Securities are held by a non-resident and non-domiciliary of the Republic.
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process; provided, that, except as provided under Article 177 of the Código Contencioso Administrativo, which does not override Articles 684 or 513 of the Código de Procedimiento Civil of the Republic, the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 15 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 15 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 15 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 14 hereof, Section 18 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 15 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur”, subject to the provisions of Article 693 of the Código de Procedimiento Civil which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic and subject to compliance with the provisions of Article 694 of the Código de Procedimiento Civil. The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus and any further amendments and supplements theretoProspectus, as applicableamended or supplemented, made and their filing with the Commission have been duly authorized by and on behalf of the Company prior to the Time of Delivery (other than the financial statements Republic, and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements amended, has been duly executed by and on behalf of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicableRepublic, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained information in the Registration Statement, the Pricing Disclosure Package or as amended, and the Prospectus, such counsel shall confirm that he as amended or supplemented, stated on the authority of public officials of the Republic has no reason to believe that:been stated in their official capacities thereunto duly authorized;
(1xvii) each part of The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of its effective dateColombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Registration Statement, at the respective times each part became effective, contained 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;; and
(2B) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted No information has come to state any material fact necessary in order such counsel’s attention that causes such counsel to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) believe that the Prospectus, as of its date and as of the date hereofthereof or on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Prospectus (4) any amendment except to the Registration Statement extent expressly set forth in (xvii) above) and that such counsel makes no representation that such counsel has independently verified the accuracy, completeness and fairness of such statements (except as aforesaid), and that such counsel’s opinions referred to in this subsection (b) are limited to matters of Colombian law and, insofar as the opinion required by this subsection (b) is affected by matters of United States or New York law, it may be given in reliance upon the opinion required to be filed or that there are any contracts or other documents by subsection (c) of a character required to be filed this Section 6 and that, insofar as an exhibit the foregoing opinions relate to the Registration Statement legality, validity, binding effect or required to be incorporated by reference into enforceability of any agreement or obligation of the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) aboveRepublic, such counsel need not express a belief with respect has assumed that each party to such agreement or obligation other than the Republic has satisfied those legal requirements that are applicable to it to the financial statements and related schedules and other financial information contained therein, and with respect extent necessary to clause (i) above, make such counsel need not express a belief with respect to any Form T-1agreement or obligation enforceable against it.
(dc) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, United States counsel for to the UnderwritersRepublic, such opinion or opinionsshall have furnished to the Representatives their written opinion, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.that:
(i) On or after Assuming that the Applicable Time there shall not Securities have occurred any been duly authorized, executed, authenticated, issued and delivered against payment therefor, the Securities constitute valid, binding and enforceable obligations of the following: Republic, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, to general principles of equity (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.whether enforcement is con
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Republic made in any certificates pursuant to the provisions hereof, to the performance by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereofof this Agreement; the and any final term sheet contemplated by Section 5(A)(a4(a) hereof, and any other material required to be filed by the Company Republic pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for The Head or Acting Head of the Company, Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Underwriters an opinion or opinionsRepresentatives such counsel’s written opinion, dated the Closing Date, to the effect that:
(i) This Agreement The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly Republic and validly authorizedthe Agreements constitute legal, executed and delivered by the Company and constitutes a valid and binding agreement obligations of the Company, Republic enforceable in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iiiiv) The issuance, execution and delivery of the Notes Securities have been duly and validly authorized by the Company and, when authenticated by the Indenture Trusteeauthorized, executed, issued and delivered by the Republic in accordance with the manner provided in Indenture, and, assuming due authentication and delivery by the Indenture will Trustee, the Securities constitute legal, valid and binding obligations of the Company, Republic enforceable in accordance with their terms entitled to the benefits of provided by the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equityIndenture;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries Securities) of the matters set forth therein Republic that will rank without any preference among themselves and equal in right of payment with all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel other present and future unsecured and unsubordinated External Indebtedness of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersRepublic;
(vi) The There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of this Agreementany of the Agreements, the issuance and sale issue of the Notes, and the consummation of the transactions and performance of the obligations Securities as contemplated herein and therein contemplated will not conflict with in the Prospectus, or result in a breach the performance or violation observance by the Republic of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Agreements or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesSecurities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the issuance due execution, delivery and sale performance by the Republic of any of the Notes Agreements or the consummation by Securities, (B) the Company validity or enforceability against the Republic of any of the transactions contemplated by this AgreementAgreements or the Securities, or (C) the issue, sale or delivery of the Securities, except such as have been obtained under for, (I) Law 533 of November 11, 1999, (II) the Act and such consentssurviving portions of Law 185 of January 27, approvals1995 which were not repealed or amended by Law 533 of November 11, authorizations1999, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with (III) the purchase and distribution relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Law 1624 of April 29, 2013, (VII) Law 1771 of December 30, 2015, (VIII) Decree No. 1068 of May 26, 2015, (IX) Resolution No. 3348 dated October 2, 2018 of the Notes Ministerio de Hacienda y Crédito Público; (X) CONPES Document No. 3928 DNP, MINHACIENDA, dated May 8, 2018; (XI) evidence of publication of this Agreement in the Sistema Eléctronico de Contratación Pública SECOP of the Republic and (XII) Authorization by Act of the UnderwritersComisión Interparlamentaria de Crédito Público adopted in its meetings held on June 6 and 14, 2018 (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) The Company To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not andnecessary that any Agreement or the Securities be registered, after giving effect recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General or Acting Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 3348 dated October 2, 2018, issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) the publication of this Agreement in the Sistema Electrónico de Contratación Pública-SECOP of the Republic, to satisfy the requirement for such publications, (B) filing of information before the Colombian Central Bank (Banco de la República) of public external indebtedness report on Form No. 6 (Formulario 6), resulting from the issuance of the Securities under the Indenture each of which shall be effected on or prior to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amendedClosing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, subject to the terms, conditions, limitations or exceptions under (i) Articles 192, 195, 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo); and (ii) Articles 593, 594 and 595 et al of Law 1564 of 2012 (Código General del Proceso); and Article 19 of Decree 111 of January 15, 1996, pursuant to which the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Indenture and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Indenture and the Securities as provided in Section 15 hereof, Section 9.7(a) of the Indenture and Section 16(a) of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur,” subject to the provisions of (i) Article 605 (et al) of Law 1564 of 2012 (Código General del Proceso), which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic; and (ii) subject to compliance with the provisions of Articles 606 and 607 of Law 1564 of 2012 (Código General del Proceso). The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic other than those governing judicial procedures, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly legalized copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus and any further amendments and supplements theretoProspectus, as applicableamended or supplemented, made and their filing with the Commission have been duly authorized by and on behalf of the Company prior to the Time of Delivery (other than the financial statements Republic, and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements amended, has been duly executed by and on behalf of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicableRepublic, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained information in the Registration Statement, the Pricing Disclosure Package or as amended, and the Prospectus, such counsel shall confirm that he as amended or supplemented, stated on the authority of public officials of the Republic has no reason to believe that:been stated in their official capacities thereunto duly authorized;
(1xvii) each part of The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Indenture, insofar as matters of its effective dateColombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Registration Statement, at the respective times each part became effective, contained 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;
(2B) No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof or on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Pricing Disclosure Package, as of the Applicable Time, contained an any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) . Such counsel may state that he or she is not passing upon and does not assume any responsibility for the Prospectusaccuracy, as of its date and as completeness or fairness of the date hereof, statements contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
Prospectus (4) any amendment except to the Registration Statement is required to be filed or extent expressly set forth in (xvii) above) and that there are any contracts or other documents such counsel makes no representation that such counsel has independently verified the accuracy, completeness and fairness of a character required to be filed such statements (except as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1aforesaid), and that such counsel’s opinions referred to in this subsection (2)b) are limited to matters of Colombian law and, (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters insofar as the Underwriters opinion required by this subsection (b) is affected by matters of United States or New York law, it may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, be given in reliance upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
required by subsection (e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (fc) of this Section 7 and as to such other matters as you may reasonably request.that, i
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations obligation of the Underwriters to purchase and pay for the Notes shall Securities will be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and the Closing Dateherein, to the accuracy of the written statements of officers of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditionsconditions precedent:
(ai) On or prior to the date of this Agreement, the Representative shall have received a letter, dated the date of this Agreement, of Coop▇▇▇ & ▇ybr▇▇▇ ▇▇▇ substantially in the form heretofore agreed, which letter shall be in form and substance agreed to by the Representative.
(ii) The Prospectus Registration Statement shall have been filed with become effective prior to the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereofExecution Time, and any other material required prior to be filed by the Company pursuant to Rule 433(d) under the ActClosing Date, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding proceedings for that purpose shall have been initiated instituted or, to the knowledge of the Company or threatened the Representative, shall be contemplated by the Commission or by any authority administering any state securities or blue sky law; the Prospectus and any supplements thereto shall have been filed (if required) with the Commission in accordance with the Rules and Regulations and the applicable paragraphs of Section 5 hereof; if filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus shall be filed in the manner and within the time period required by Rule 424(b); and no notice of objection of stop order suspending the Commission to the use effectiveness of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; issued and no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus proceedings for that purpose shall have been initiated instituted or threatened threatened.
(iii) Subsequent to the execution and delivery of this Agreement, there shall have not occurred (a) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Company or Onyx which, in the reasonable judgment of the Underwriters, materially impairs the investment quality of the Securities; (b) any suspension or material limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of Onyx on any exchange or in the over-the-counter market by such exchange or over-the-counter market or by the Commission; and all requests for additional information (c) any banking moratorium declared by Federal, New York or California authorities; (d) any outbreak or material escalation of major hostilities or any other substantial national or international calamity or emergency if, in the reasonable judgment of the Representative, the effect of any such outbreak, escalation, calamity or emergency on the part United States financial markets makes it impracticable or inadvisable to proceed with completion of the Commission shall have been complied with to your reasonable satisfactionsale of, and any payment for, the Securities.
(biv) King & Spalding LLP, counsel for the Company, The Underwriters shall have furnished to the Underwriters received an opinion or opinionsopinion, dated the Closing Date, of Andr▇▇▇ & ▇urt▇ ▇.▇. P., counsel of the Company, substantially to the effect that:
(ia) The Company (1) is duly incorporated and is validly existing and in good standing under the laws of the State of Delaware, (2) has the corporate power and corporate authority to own its properties and conduct its business as described in the Prospectus and (3) had at all relevant times, and now has, the power, authority and legal right to acquire, own and sell the Contracts;
(b) The Company has, or at the time such agreement was executed and delivered, had, the corporate power and corporate authority to execute and deliver this Agreement, the Trust Agreement, the Servicing Agreement, the Purchase Agreement and the Insurance Agreement and to consummate the transactions contemplated herein and therein;
(c) No consent, approval, authorization or order of, or filing with, any California, Delaware or federal governmental agency or body or any court is or was required by the Company to perform the transactions contemplated by this Agreement, the Trust Agreement and the Servicing Agreement, the Purchase Agreement or the Insurance Agreement except for (1) filing of a Uniform Commercial Code financing statement in the State of California with respect to the transfer of the Contracts to the Trust pursuant to the Trust Agreement and the Servicing Agreement, and the sale of the Contracts to the Company pursuant to the Purchase Agreement (2) such consents, approvals, authorizations, orders or filings as may be required under the federal which have been made or obtained and (3) such consents, approvals, authorizations, orders or filings as may be required under state securities laws;
(d) None of the execution, delivery and performance by the Company of this Agreement, the Trust Agreement, the Servicing Agreement, the Purchase Agreement or the Insurance Agreement, the transfer of the Contracts to the Trust, the assignment of the security interests of the Company in the Financed Vehicles, the issuance and sale of the Securities or the consummation of any other of the transactions contemplated herein or in the Trust Agreement, the Servicing Agreement, the Purchase Agreement or the Insurance Agreement conflicts or will conflict with, has resulted or will result in a breach, violation or acceleration of any of the terms of, or has constituted or will constitute a default under, the By-Laws or the Certificate of Incorporation of the Company, as amended, or, to the best of such counsel's knowledge, any rule, order, statute or regulation known to such counsel to be currently applicable to the Company of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Company or the terms of any material indenture or other material agreement or instrument known to such counsel to which the Company is a party or by which it or its properties are bound;
(e) To the best knowledge of such counsel, after due inquiry, there are no actions, proceedings or investigations pending or threatened before any court, administrative agency or other tribunal (1) asserting the invalidity of this Agreement, the Trust Agreement, the Servicing Agreement, the Purchase Agreement or the Insurance Agreement or the Securities, (2) seeking to prevent the issuance of the Securities or the consummation of any of the transactions contemplated by this Agreement, the Trust Agreement, the Servicing Agreement, the Purchase Agreement or the Insurance Agreement (3) seeking adversely to affect the federal income tax attributes of the Securities as described in the Base Prospectus under the headings "SUMMARY OF TERMS -- Tax Status"; "CERTAIN FEDERAL INCOME TAX CONSEQUENCES"; "TRUSTS FOR WHICH A PARTNERSHIP ELECTION IS MADE" and "TRUSTS TREATED AS GRANTOR TRUSTS" and in the Prospectus Supplement under the headings "SUMMARY OF TERMS -- Federal Income Tax Status" and "Certain Federal Income Tax Consequences";
(f) This Agreement, the Trust Agreement, the Servicing Agreement, the Purchase Agreement has and the Insurance Agreement have each been duly authorized, executed and delivered by the Company;
(iig) The Indenture Contracts constitute "chattel paper" as defined in Section 9-105(a)(2) of the Uniform Commercial Code of the State of California;
(h) The statements in the Prospectus under the caption "Certain Legal Aspects of the Contracts," and "ERISA Considerations" to the extent they constitute matters of California or federal law or legal conclusions, are correct in all material respects;
(i) The direction by the Company to the Co-Owner Trustee to authenticate the Certificates has been duly authorized by the Company and, when the Certificates have been duly executed, authenticated and delivered by the Co-Owner Trustee in accordance with the Trust Agreement and delivered and paid for pursuant to this Agreement, will be duly and validly authorizedissued and outstanding, and will be entitled to the benefits of the Trust Agreement.
(j) When the Notes have been duly executed and delivered by the Company and constitutes a valid and binding agreement Co-Owner Trustee on behalf of the CompanyTrust, enforceable authenticated by the Indenture Trustee in accordance with its the Indenture and delivered and paid for pursuant to this Agreement, the Notes will be the valid, legal and binding obligations of the Trust, enforceable against the Trust in accordance with their terms, subject, as to enforcement of remedies, subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or preferential conveyance and other similar laws of general application relating to or affecting the creditors' rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
(iiik) The issuanceAssuming the authorization, execution and delivery thereof by each party thereto other than the Company, Fundco and Onyx, each of the Notes have been duly Trust Agreement, the Purchase Agreements, the Servicing Agreement and validly authorized by the Company andInsurance Agreement constitutes the legal, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations agreement of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement enforcement, to (1) the effect of remediesbankruptcy, insolvency, reorganization, moratorium, fraudulent or preferential conveyance and other similar laws of general application relating to or affecting creditors' rights generally, and general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law); and (2) the unenforceability under certain circumstances of provisions indemnifying a party against liability where such indemnification is contrary to public policy;
(l) The Registration Statement became effective under the Act as of the date and time specified in such opinion; after due inquiry, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act; the Registration Statement, and each amendment thereof or supplement thereto as of its Effective Date and the Prospectus as of its date of issuance appeared on its face to be appropriately responsive in all material respects to the applicable requirements of the Securities Act and the Rules and Regulations, and such counsel need not opine as to the financial statements and related notes, schedules and other financial and statistical data included therein; and any required filing of the Prospectus and Prospectus Supplement pursuant to Rule 424(b) has been made;
(m) The Securities, the Indenture, the Trust Agreement, the Servicing Agreement, the Purchase Agreement, and the Guarantee conform in all material respects to the descriptions thereof contained in the Registration Statement and the Prospectus;
(n) The Trust Agreement is not required to be qualified under the Trust Indenture Act of 1939, as amended;
(o) The Indenture has been duly qualified under the Trust Indenture Act; and
(p) The Company is not, and will not as a result of the offer and sale of the Securities as contemplated in the Prospectus and this Agreement become, an "investment company" as defined in the Investment Company Act of 1940, as amended (the "Investment Company Act")or a company "controlled by" an "investment company" within the meaning of the Investment Company Act.
(q) The Trust is not now, and immediately following the sale of the Securities pursuant to this Agreement will not be, required to be registered under the Investment Company Act.
(r) The Indenture, the Sale and Servicing Agreement and the Administration Agreement, assuming that they have been duly authorized by, and when duly executed and delivered by, the Owner Trustee on behalf of the Trust, will constitute the legal, valid and binding obligations of the Trust, enforceable against the Trust in accordance with their terms, except (x) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other preferential conveyance and other similar laws and other similar laws of general application relating to or affecting the rights and remedies of creditors generally, generally and the effects of to general principles of equity;
equity (regardless of whether such enforcement is considered in a proceeding in equity or at law). In addition, such counsel shall opine (i) as to certain matters relating to the acquisition by the Company of a perfected first priority security interest in the vehicles financed by the Contracts and (ii) as to the existence of a valid, perfected, first priority security interest in the Contacts in favor of the Owner Trustee from the Company and in favor of the Indenture Trustee from the Owner Trustee. In rendering such opinion, such counsel may rely (i) as to matters of fact, to the extent deemed proper and as stated therein, on certificates of responsible officers of the Company and public officials and (ii) on other opinions of counsel as specified therein. References to the Prospectus in this paragraph (iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; andinclude any supplements thereto.
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company Underwriters shall have furnished to the Underwriters received an opinion, dated the Closing Date, of ▇▇▇▇Andr▇▇▇ & ▇. urt▇ ▇.▇▇▇▇▇.P., General Counsel of the Companycounsel to Onyx and Fundco, substantially to the effect that:
(ia) The Company has been Each of Onyx and Fundco (1) is duly incorporated and is validly existing as a corporation and in good standing under the laws of the State of Georgiaits incorporation, and is duly registered as a bank holding company under (2) has the Bank Holding Company Act of 1956, as amended, with corporate power and corporate authority to own its properties and conduct its business as described in the ProspectusProspectus and (3) had at all relevant times, and now has, the power, authority and legal right to acquire, own and sell the Contracts;
(iib) The Each of Onyx and Fundco has the corporate power and corporate authority to execute and deliver the Servicing Agreement, the Administration Agreement, and the Purchase Agreements, to the extent applicable, and at the time it was executed and delivered, had the power and authority to execute and deliver the Purchase Agreement and the Servicing Agreement, the Administration Agreement, to the extent applicable, and to consummate the transactions contemplated herein and therein;
(c) No consent, approval, authorization or order of, or filing with, any California or federal governmental agency or body or any court is required by Onyx or Fundco to perform the transactions contemplated by the Servicing Agreement, the Administration Agreement or the Purchase Agreements, as applicable, except for (1) filing of a Uniform Commercial Code financing statement in the State of California with respect to the sale of the Contracts to the Company has an authorized capitalization pursuant to the Purchase Agreements and (2) such consents, approvals, authorizations, orders or filings as may be required under the federal and state securities laws; the opinion set forth in the Prospectusthis sentence is limited to such authorizations, approvals, consents and all orders which, in such counsel's experience, are normally applicable to transactions of the issued shares of capital stock of type contemplated by the Company have been duly Servicing Agreement, the Administration Agreement and validly authorized and issued and are fully paid and non-assessablethe Purchase Agreements, as applicable;
(iiid) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason None of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated execution, delivery and is validly existing as a corporation in good standing under the laws performance by Onyx or Fundco of the State of Georgia; and except Servicing Agreement, the Administration Agreement or the Purchase Agreements, as set forth in applicable, or the Prospectus, all transfer of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by Contracts to the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict has conflicted with or will conflict with, has resulted or will result in a breach breach, violation or violation acceleration of any of the terms or provisions of, or has constituted or will constitute a default under, the By-Laws or the Certificate of Incorporation of Onyx or Fundco, as amended, or, to the best of such counsel's knowledge, any indenturerule, mortgageorder, deed statute or regulation known to such counsel to be currently applicable to Onyx or Fundco of trustany court, loan agreement regulatory body, administrative agency or governmental body having jurisdiction over Onyx or Fundco or the terms of any material indenture or other material agreement or instrument known to such counsel to which the Company Onyx or SunTrust Bank Fundco is a party or by which the Company it or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesits properties are bound;
(viie) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this The Servicing Agreement, except such the Administration Agreement and the Purchase Agreements have each been duly authorized, executed and delivered by Onyx and Fundco, as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwritersapplicable;
(viiif) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and indemnification agreement dated as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make between Onyx and the statements thereinUnderwriters has been duly authorized, in the light of the circumstances under which they were made, not misleadingexecuted and delivered by Onyx; orand
(4g) any amendment to Assuming the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to authorization, execution and delivery thereof by the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief Company with respect to the financial statements and related schedules and other financial information contained thereinServicing Agreement, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP Administration Agreement and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c)Purchase Agreements, respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any each such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement (Onyx Acceptance Financial Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable TimeTime of Sale, the date hereof Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus Final Prospectus, and any supplement thereto, shall have been filed with in the Commission pursuant to manner and within the time period required by Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof); the final term sheet contemplated by Section 5(A)(a5(b) hereofhereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any part thereof notice by the Commission objecting to its use shall have been issued and no proceeding proceedings for that purpose shall have been initiated instituted or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfactionthreatened.
(b) King & Spalding ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinionsRepresentatives its opinion, dated the Closing DateDate and addressed to the Representatives, to the effect that:
(i) This the Company has been duly organized and is validly subsisting as a corporation under the laws of the Commonwealth of Pennsylvania, with full corporate power and authority under its articles of incorporation to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
(ii) the Securities are in due and proper form; the issue and sale of the Securities by the Company in accordance with the terms of this Agreement have been duly and validly authorized by all necessary corporate action on the part of the Company and by orders duly entered by the Pennsylvania Public Utility Commission. The Securities have been duly executed and delivered by the duly authorized officers of the Company and, when authenticated and delivered by the Trustee against payment therefor, will constitute legal, valid and binding obligations of the Company, enforceable in accordance with their terms subject to (1) the effect of applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer, marshalling or similar laws affecting creditors’ rights and remedies generally and (2) general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(iii) the Indenture has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by duly authorized officers of the Company. The Indenture constitutes a legal, valid and binding instrument, enforceable in accordance with its terms except as the enforceability thereof may be limited by (1) the effect of applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer, marshalling or similar laws affecting creditors’ rights and remedies generally and (2) general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether such enforceability is considered in a proceeding in equity or at law). The Indenture has been duly qualified under the Trust Indenture Act;
(iv) the Indenture constitutes a valid mortgage lien of record upon all real property presently owned by the Company described therein as subject to the lien thereof (other than properties expressly excepted therefrom, properties properly released from the lien thereof pursuant to the terms thereof and substantially all of the Company’s leaseholds), and the Securities are secured by a valid and, to the extent that it may be perfected by filing under the Uniform Commercial Code, a perfected security interest in such of the personal property of the Company as is described in the Indenture, whether such personal property is now owned or hereinafter acquired by the Company (other than properties expressly excepted therefrom; properties released from the security interest created thereby; “proceeds” as defined in the Uniform Commercial Code to the extent limited by the terms of Section 9-315 of the Uniform Commercial Code; after-acquired property subject to Section 552 of the Federal Bankruptcy Code; property sold to a buyer in the ordinary course of business, licensed to a licensee in the ordinary course of business or leased to a lessee in the ordinary course of business; insurance policies (except to the extent that payments thereunder are “proceeds,” as defined in the Uniform Commercial Code); and contract rights or general intangibles which by their terms, or by law, are not assignable); such counsel need express no opinion as to any actions that may be required to be taken periodically under the Uniform Commercial Code or other applicable law in order for the validity or perfection of any security interest to be maintained;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(iivi) The Indenture has been duly and validly authorized, executed and delivered by such counsel is not representing the Company and constitutes in any pending litigation in which it is a valid and binding agreement of named defendant, or in any litigation that is overtly threatened in writing against it by a potential claimant, that challenges the Companyvalidity or enforceability of, enforceable in accordance with its termsor seeks to enjoin the performance of, subjectthe transactions contemplated by this Agreement, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; Securities and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws knowledge of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no material pending legal or governmental proceedings pending to which the Company or any of its subsidiaries subsidiary is a party or of and which are required to be set forth in the documents incorporated by reference in the Registration Statement and Final Prospectus other than those referred to in such documents; and the statements in any property Preliminary Prospectus and the Final Prospectus under the heading “Description of the Company or any of its subsidiaries is Bonds and First and Refunding Mortgage” fairly summarize the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and matters therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesdescribed;
(vii) the PAPUC has entered an appropriate order authorizing the Company to issue and sell the Securities as contemplated herein; such order is in full force and effect and, to the best of such counsel’s knowledge after due inquiry, no proceeding has been initiated upon appeal from or to review the effectiveness of such order. No other consent, approval, authorization, order, registration filing with or qualification order of or with any court or state or federal governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of in connection with the transactions contemplated by in this Agreement, the Indenture or the Securities, except such as have been obtained under the Act Act, the Trust Indenture Act, and from the PAPUC, and such consents, approvals, authorizations, registrations or qualifications as may be required under state the blue sky or securities or Blue Sky laws of any jurisdiction in connection with the purchase and distribution sale of the Notes Securities by the UnderwritersUnderwriters in the manner contemplated in this Agreement and the Final Prospectus and such other approvals (specified in such opinion) as have been obtained;
(viii) The Company is not and, after giving effect to the offering and sale Registration Statement has become effective under the Act; any required filing of the Notes Base Prospectus, any Preliminary Prospectus and the application of the proceeds thereoffinal Prospectus, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicablepursuant 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, made no stop order suspending the effectiveness of the Registration Statement or any notice by the Company prior Commission objecting to its use has been issued, no proceedings for that purpose have been instituted or threatened, and the Time of Delivery Registration Statement (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they as of the date the Registration Statement originally became effective or were filed under the Act, and together with the CommissionPreliminary Prospectus and the final Prospectus, as of each “new effective date” with respect to the Notes pursuant to and within the meaning of Rule 430B(f)(2) under the Act, complied, and the Preliminary Prospectus and the final Prospectus (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion), as of their respective dates, complied, and the final Prospectus (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion), as of the date hereof, complies, in each case may be, complied as to form in all material respects with the applicable requirements of the Act or Act, the Exchange ActAct and the Trust Indenture Act and the respective rules thereunder;
(ix) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus, will not be required to register as an “investment company” under the Investment Company Act of 1940, as applicableamended;
(x) the execution and delivery of this Agreement, the Indenture and the Securities, the consummation of any other transactions contemplated by this Agreement, the Indenture and the Securities, and the rules and regulations fulfillment of the Commission thereunder. In additionterms hereof or thereof do not, although such counsel need not pass upon and the performance of the obligations hereunder and thereunder will not, (1) violate the articles of incorporation and bylaws of the Company; (2) violate any statute, law, rule, regulation, judgment, order or assume decree applicable to the Company of any responsibility court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its properties; or (3) conflict with, breach or result in a default under the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company is a party or bound or to which its property is subject that is listed in the Exhibit Index to the Company’s Form 10-K for the accuracyfiscal year ended December 31, completeness 2011, Forms 10-Q for the fiscal quarters ended March 31, 2012 and June 30, 2012 and Forms 8-K filed with the Commission during the period between January 1, 2012 and the Closing Date or fairness result in the creation or imposition of any security interest in or lien or encumbrance upon, any property or asset of the statements contained Company pursuant to any item referred to in this clause (3) (other than the lien of the Indenture). When used in this opinion, the phrase “conflict with” shall comprehend obligations or options to take action under the transactions contemplated by this Agreement that, if performed today, would constitute a breach or default under, or result in the Registration Statementcreation or imposition of any lien on Company’s property or other assets under, or result in any requirement for mandatory prepayment or purchase of debt or in a resetting of interest rates under a relevant document listed in clause (3) above;
(xi) the Pricing Disclosure Package discussions in any Preliminary Prospectus and the Final Prospectus in each case under the caption “Certain United States Federal Income Tax Consequences” are fair and accurate summaries of the matters addressed therein, based upon current law and the assumptions stated or the Prospectusreferred to therein, and such counsel shall confirm that he these discussions, to the extent they constitute matters of federal income tax law or legal conclusions with respect thereto, represent its opinion; and
(xii) such counsel has no reason to believe that:
that (1) each part of on the Effective Date, the Registration Statement, as of its effective date, Statement contained an any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
, (2) the Pricing Disclosure Package, as of the Applicable TimeTime of Sale, the Disclosure Package contained an any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
misleading or (3) the Prospectus, as of its date and as of on the date hereofClosing Date, contained the Final Prospectus included or contains an includes any untrue statement of a material fact or omitted or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
misleading (4) any amendment to the Registration Statement is required to be filed or that there are any contracts or in each case, other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to than the financial statements and related schedules and other financial information contained therein, and with respect as to clause (i) abovewhich such counsel need express no opinion); In rendering such opinion, such counsel need not express a belief with respect may rely (A) as to matters involving the application of laws of any Form T-1jurisdiction other than the Commonwealth of Pennsylvania or the Federal laws of 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 Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(dc) The Underwriters Representatives shall have received from ▇▇▇▇▇▇▇▇ Winston & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to such the issuance and sale of the Securities, the Indenture, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriters Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. ▇▇▇▇▇▇▇▇ In rendering such opinion, Winston & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trusteerely, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Lawthe laws of the State of Pennsylvania, upon the opinion of King & Spalding LLP and counsel for the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant Company referred to in Section 6(b) and 6(c), respectively.
(ed) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP The Company shall have furnished to you the Representatives a letter certificate of the Company, signed by the Chairman of the Board or lettersthe President and the principal financial or accounting officer of the Company, dated the respective dates of delivery thereof, in form and substance satisfactory to youClosing Date, to the effect set forth in Annex I (a form that the signers of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendment or supplement thereto and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Time of Delivery, is attached Closing Date with the same effect as Annex I(b)).if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(fii) Neither no stop order suspending the Company nor effectiveness of the Registration Statement or any of notice by the Commission objecting to its Significant Subsidiaries shall use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iiii) sustained since the date of the latest audited most recent financial statements included or incorporated by reference in the Pricing Disclosure Package and the Final Prospectus (exclusive of any loss supplement thereto), there has been no material adverse effect on the financial condition, business or interference with properties of the Company and its business from firesubsidiaries, explosion, flood or other calamitytaken as a whole, whether or not covered by insurancearising from transactions in the ordinary course of business, or from any labor dispute or court or governmental action, order or decree, otherwise than except as set forth in or contemplated in the Pricing ProspectusDisclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives.
(iif) since Subsequent to the respective Execution Time or, if earlier, the dates as of which information is given in the Pricing Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the capital stock letter or long-term debt letters referred to in paragraph (e) of the Company this Section 6 or any of its subsidiaries or (ii) any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.financ
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Republic made in any certificates pursuant to the provisions hereof, to the performance by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereofof this Agreement; the and any final term sheet contemplated by Section 5(A)(a4(a) hereof, and any other material required to be filed by the Company Republic pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for The Head or Acting Head of the Company, Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Underwriters an opinion or opinionsRepresentatives such counsel’s written opinion, dated the Closing Date, to the effect that:
(i) This Agreement The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly Republic and validly authorizedthe Agreements constitute legal, executed and delivered by the Company and constitutes a valid and binding agreement obligations of the Company, Republic enforceable in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iiiiv) The issuance, execution and delivery of the Notes Securities have been duly and validly authorized by the Company and, when authenticated by the Indenture Trusteeauthorized, executed, issued and delivered by the Republic in accordance with the manner provided in Fiscal Agency Agreement, and, assuming due authentication and delivery by the Indenture will Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and Republic enforceable against the Company in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries Securities) of the matters set forth therein Republic that will rank equal in right of payment with all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel other present and future unsecured and unsubordinated External Indebtedness of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersRepublic;
(vi) The There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of this Agreementany of the Agreements, the issuance and sale issue of the Notes, and the consummation of the transactions and performance of the obligations Securities as contemplated herein and therein contemplated will not conflict with in the Prospectus, or result in a breach the performance or violation observance by the Republic of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Agreements or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesSecurities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the issuance due execution, delivery and sale performance by the Republic of any of the Notes Agreements or the consummation by Securities, (B) the Company validity or enforceability against the Republic of any of the transactions contemplated by this AgreementAgreements or the Securities, or (C) the issue, sale or delivery of the Securities, except such as have been obtained under for (I) Law 533 of November 11, 1999, (II) the Act and such consentssurviving portions of Law 185 of January 27, approvals1995 which were not repealed or amended by Law 533 of November 11, authorizations1999, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with (III) the purchase and distribution relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Decree No. 2681 of December 29, 1993, (VI) Resolution No. 910 dated April 13, 2009 of the Notes Ministerio de Hacienda y Crédito Público, (VII) CONPES Document No. 3580 MINHACIENDA, DNP:SC, dated April 2, 2009, (VIII) Authorization by Act of the UnderwritersComisión Interparlamentaria de Crédito Público adopted in its meeting held on April 2, 2009 and (IX) External Resolution No. 3 dated April 8, 2009 of the Board of Governors of the Central Bank of Colombia (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) The Company To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not andnecessary that any Agreement or the Securities be registered, after giving effect recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 910 dated April 13, 2009 issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) a summary of the Agreements in the Diario Único de Contratación Pública of the Republic, to satisfy the requirement for such publications, (B) notice to the offering Banco de la República concerning the external indebtedness represented by the Securities and sale (C) in accordance with External Resolution No. 3 of April 8, 2009, issued by the Junta Directiva del Banco de la República, the delivery of written information from the Director General of Public Credit and National Treasury of the Notes and Ministerio de Hacienda y Crédito Público to the application Junta Directiva del Banco de la República regarding the proposed issuance of the proceeds thereofSecurities, will not each of which shall be an “investment company,” as such term is defined in effected on or prior to the Investment Company Act of 1940, as amendedClosing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that, the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process; provided, that, except as provided under Article 177 of the Código Contencioso Administrativo of the Republic, which does not override Articles 684 or 513 of the Código de Procedimiento Civil and Article 19 of Decree 111 of January 15, 1996 of the Republic, the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur”, subject to the provisions of Article 693 of the Código de Procedimiento Civil which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic and subject to compliance with the provisions of Article 694 of the Código de Procedimiento Civil. The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus and any further amendments and supplements theretoProspectus, as applicableamended or supplemented, made and their filing with the Commission have been duly authorized by and on behalf of the Company prior to the Time of Delivery (other than the financial statements Republic, and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements amended, has been duly executed by and on behalf of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicableRepublic, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained information in the Registration Statement, the Pricing Disclosure Package or as amended, and the Prospectus, such counsel shall confirm that he as amended or supplemented, stated on the authority of public officials of the Republic has no reason to believe that:been stated in their official capacities thereunto duly authorized;
(1xvii) each part of The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of its effective dateColombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Registration Statement, at the respective times each part became effective, contained 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;
(2B) No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof or on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Pricing Disclosure Package, as of the Applicable Time, contained an any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) . Such counsel may state that he or she is not passing upon and does not assume any responsibility for the Prospectusaccuracy, as of its date and as completeness or fairness of the date hereof, statements contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
Prospectus (4) any amendment except to the Registration Statement is required to be filed or extent expressly set forth in (xvii) above) and that there are any contracts or other documents such counsel makes no representation that such counsel has independently verified the accuracy, completeness and fairness of a character required to be filed such statements (except as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1aforesaid), and that such counsel’s opinions referred to in this subsection (2)b) are limited to matters of Colombian law and, (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters insofar as the Underwriters opinion required by this subsection (b) is affected by matters of United States or New York law, it may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, be given in reliance upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
required by subsection (e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (fc) of this Section 7 and that, insofar as the foregoing opinions relate to such other matters as you may reasonably request.the legality, validity, binding effect or
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters Underwriters, as to purchase Securities to be purchased at the Notes Time of Delivery, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the date hereof, as of the Applicable Time, Time and at and as of the date hereof and the Closing DateTime of Delivery, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof); the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.;
(b) King & Spalding LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated the Closing DateTime of Delivery, in form and substance satisfactory to you, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP , and such counsel shall have received such papers and information as they may rely reasonably request to enable them to pass upon such matters;
(ic) The Company’s Senior Corporate Counsel or such other internal counsel as to those matters that relate shall be reasonably acceptable to the Indenture Trustee, upon Underwriters (the certificate or certificates of such entities and (ii“Internal Counsel”) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letterssuch counsel’s written opinion, to the effect set forth in Exhibit C, dated the respective dates Time of delivery thereofDelivery, in form and substance satisfactory to you;
(d) ▇▇▇▇▇▇▇ LLP, Maryland counsel for the Company, shall have furnished to you their written opinion, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration StatementExhibit B, and as of dated the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, form and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees substance satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.you;
Appears in 1 contract
Sources: Underwriting Agreement (Huntington Bancshares Inc/Md)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Underwritten Units and the Option Units, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company Partnership contained herein as of the Applicable Execution Time, the date hereof Closing Date and the any Option Closing DateDate pursuant to Section 3 hereof, to the accuracy of the statements of the Company Partnership made in any certificates pursuant to the provisions hereof, to the performance by the Company Partnership of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall Final Prospectus, and any supplement thereto, have been filed with in the Commission pursuant to manner and within the time period required by Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof); the final term sheet contemplated by Section 5(A)(a5(b) hereofhereto, and any other material required to be filed by the Company Partnership pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; 433 and no stop order suspending the effectiveness of the Registration Statement or any part thereof notice that would prevent its use shall have been issued and no proceeding proceedings for that purpose shall have been initiated instituted or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfactionthreatened.
(b) King & Spalding The Partnership shall have requested and caused ▇▇▇▇▇ Lord LLP, counsel for to the Company▇▇▇▇▇▇ Parties, shall to have furnished to the Underwriters an opinion or opinionstheir opinion, dated the Closing DateDate and addressed to the Underwriters, to the effect that:
(i) This Agreement Each of the Partnership and the Operating Partnership has been duly authorizedformed and is validly existing in good standing as a limited partnership under the Delaware LP Act with all necessary limited partnership power and authority to own or lease its properties and to conduct its business as presently conducted and as described in the Registration Statement, executed Disclosure Package and delivered the Final Prospectus, in each case in all material respects. Each of the Partnership and the Operating Partnership has been duly registered or qualified as a foreign limited partnership for the transaction of business under the laws of each jurisdiction in which the character of the business conducted by it or the Company;nature or location of the properties owned or leased by it makes such registration or qualification necessary, except where the failure to so register or qualify does not have a Material Adverse Effect.
(ii) The Indenture Each of the General Partner and Operating GP has been duly formed and is validly authorizedexisting in good standing as a limited liability company under the Delaware LLC Act with all necessary limited liability company power and authority to own or lease its properties and to conduct its business as presently conducted and as described in the Registration Statement, executed Disclosure Package and delivered by the Company Final Prospectus, in each case in all material respects. The General Partner has all necessary limited liability company power and constitutes a valid and binding agreement authority to act as general partner of the Company, enforceable in accordance with its terms, subject, Partnership. Operating GP has all necessary limited liability company power and authority to act as to enforcement general partner of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer the Operating Partnership. Each of the General Partner and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture Operating GP has been duly registered or qualified as a foreign limited liability company for the transaction of business under the Trust Indenture Act;laws of each jurisdiction in which the character of the business conducted by it or the nature or location of the properties owned or leased by it makes such registration or qualification necessary, except where the failure to so register or qualify does not have a Material Adverse Effect.
(iii) The issuance, execution and delivery General Partner is the sole general partner of the Notes have Partnership with a 2% general partner interest in the Partnership; such general partner interest has been duly authorized and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, Partnership Agreement; and the effects of General Partner owns such general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, partner interest free and clear of all liens, encumbrances, equities security interests, charges or claims;claims in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the General Partner as debtor is on file in the office of the Secretary of State of Delaware or otherwise known to such counsel, without independent investigation, in each case other than those created by or arising under the Delaware LP Act, Permitted Liens, applicable securities laws and any restrictions set forth in the governing documents of the ▇▇▇▇▇▇ Parties.
(iv) The General Partner owns all of the Incentive Distribution Rights, ▇▇▇▇▇▇ Resource LLC owns 4,203,823 Common Units, Cross owns 889,444 Common Units and ▇▇▇▇▇▇ Product owns 1,171,265 Common Units; all of such Common Units and the limited partner interests represented thereby and the Incentive Distribution Rights have been duly authorized and validly issued in accordance with the Partnership Agreement, and are fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act and as otherwise described in the Preliminary Prospectus Supplement and the Final Prospectus under the caption “The Partnership Agreement—Limited Liability”); and the General Partner, ▇▇▇▇▇▇ Resource LLC, Cross and ▇▇▇▇▇▇ Product own their respective Common Units and Incentive Distribution Rights free and clear of all liens, encumbrances, security interests, charges or claims in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the General Partner, ▇▇▇▇▇▇ Resource LLC or Cross as debtor is on file in the office of the Secretary of State of Delaware, (B) in respect of which a financing statement under the Uniform Commercial Code of the State of Texas naming ▇▇▇▇▇▇ Product as debtor is on file in the office of the Secretary of State of Texas or (C) otherwise known to such counsel, without independent investigation, in each case other than those created by or arising under the Delaware LP Act, Permitted Liens, applicable securities laws, any restrictions set forth in the governing documents of the ▇▇▇▇▇▇ Parties and, with respect to the Incentive Distribution Rights, any restrictions on transferability set forth in the governing documents of the ▇▇▇▇▇▇ Parties.
(v) To The Units to be issued and sold to the Underwriters by the Partnership pursuant to the Underwriting Agreement and the limited partner interests represented thereby have been duly authorized in accordance with the Partnership Agreement and all necessary partnership and limited liability company action of the ▇▇▇▇▇▇ Parties and, when issued and delivered to the Underwriters against payment therefore in accordance with the terms of the Underwriting Agreement, will be validly issued, fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such counsel’s knowledge nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Delaware LP Act and as otherwise described in the Preliminary Prospectus Supplement and the Final Prospectus under the caption “The Partnership Agreement—Limited Liability”); and other than as set forth in the ProspectusSponsor Units and the Incentive Distribution Rights, there the Common Units are no legal or governmental proceedings pending to which the Company or any only class of its subsidiaries is a party or of which any property limited partner interests of the Company or any of its subsidiaries is Partnership issued and outstanding at the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;Closing Date.
(vi) The execution Partnership is the sole member of Operating GP with a 100% limited liability company interest in Operating GP; such limited liability company interest has been duly authorized and delivery of this validly issued in accordance with the Operating GP Agreement and is fully paid (to the extent required under the Operating GP Agreement, the issuance ) and sale nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Notes, Delaware LLC Act); and the consummation Partnership owns such limited liability company interest free and clear of all liens, encumbrances, security interests, charges or claims in respect of which a financing statement under the Uniform Commercial Code of the transactions and performance State of Delaware naming the Partnership as debtor is on file in the office of the obligations herein and therein contemplated will not conflict with Secretary of State of Delaware or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument otherwise known to such counsel to which counsel, without independent investigation, in each case other than those created by or arising under the Company or SunTrust Bank is a party or by which Delaware LLC Act, Permitted Liens, applicable securities laws and any restrictions set forth in the Company or SunTrust Bank is bound or to which any governing documents of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;▇▇▇▇▇▇ Parties.
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body Operating GP is required for the issuance and sale sole general partner of the Notes Operating Partnership with a 0.1% general partner interest in the Operating Partnership; such general partner interest has been duly authorized and validly issued in accordance with the Operating Partnership Agreement, and is fully paid (to the extent required under the Operating GP Agreement), and Operating GP owns such general partner interest free and clear of all liens, encumbrances, security interests, charges or claims in respect of which a financing statement under the consummation by the Company Uniform Commercial Code of the transactions contemplated State of Delaware naming Operating GP as debtor is on file in the office of the Secretary of State of Delaware or otherwise known to such counsel, without independent investigation, in each case other than those created by this Agreement, except such as have been obtained or arising under the Act Delaware LP Act, Permitted Liens, applicable securities laws and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws any restrictions set forth in connection with the purchase and distribution governing documents of the Notes by the Underwriters;▇▇▇▇▇▇ Parties.
(viii) The Company Partnership is not and, after giving effect the sole limited partner of the Operating Partnership with a 99.9% limited partner interest in the Operating Partnership; such limited partner interest has been duly authorized and validly issued in accordance with the Operating Partnership Agreement and is fully paid (to the offering extent required under the Operating Partnership Agreement) and sale nonassessable (except as such nonassessability may be affected by Sections 17-303, 17-607 and 17-804 of the Notes Delaware LP Act); and the application Partnership owns such limited partner interest free and clear of all liens, encumbrances, security interests, charges or claims in respect of which a financing statement under the Uniform Commercial Code of the proceeds thereof, will not be an “investment company,” State of Delaware naming the Partnership as such term debtor is defined on file in the Investment Company Act office of 1940the Secretary of State of Delaware or otherwise known to such counsel, as amended;without independent investigation, in each case other than those created by or arising under the Delaware LP Act, Permitted Liens, applicable securities laws and any restrictions set forth in the governing documents of the ▇▇▇▇▇▇ Parties.
(ix) The Registration StatementOperating Partnership owns 100% of the outstanding Class A membership interests and 100% of the outstanding Class B membership interests in Redbird; such membership interests have been duly authorized and validly issued in accordance with the Redbird Agreement, are fully paid (to the Prospectus extent required under the Redbird Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act); and the Operating Partnership owns such membership interests free and clear of all liens, encumbrances, security interests, charges or claims in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Operating Partnership as debtor is on file in the office of the Secretary of State of Delaware or otherwise known to such counsel, without independent investigation, in each case other than those created by or arising under the Delaware LLC Act, Permitted Liens, applicable securities laws and any further amendments and supplements thereto, as applicable, made by restrictions set forth in the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; andRedbird Agreement.
(x) The documents incorporated Operating Partnership owns 100% of the outstanding membership interests in MOP Midstream; such membership interests have been duly authorized and validly issued in accordance with the MOP Midstream Agreement, are fully paid (to the extent required under the MOP Midstream Agreement) and nonassessable (except as such nonassessability may be affected by reference Sections 18-607 and 18-804 of the Delaware LLC Act); and the Operating Partnership owns such membership interests free and clear of all liens, encumbrances, security interests, charges or claims (i) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Operating Partnership as debtor is on file in the Prospectus office of the Secretary of State of Delaware or (ii) otherwise known to such counsel, without independent investigation, in each case other than those created by or arising under the Delaware LLC Act, Permitted Liens, applicable securities laws and any restrictions set forth in the MOP Midstream Agreement.
(xi) The Operating Partnership owns 100% of the outstanding membership interests in NGL; such membership interests have been duly authorized and validly issued in accordance with the NGL Agreement, are fully paid (to the extent required under the NGL Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act); and the Operating Partnership owns such membership interests free and clear of all liens, encumbrances, security interests, charges or claims (i) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Operating Partnership as debtor is on file in the office of the Secretary of State of Delaware or (ii) otherwise known to such counsel, without independent investigation, in each case other than those created by or arising under the Delaware LLC Act, Permitted Liens, applicable securities laws and any restrictions set forth in the NGL Agreement.
(xii) The Operating Partnership owns 100% of the outstanding membership interests in NGL II; such membership interests have been duly authorized and validly issued in accordance with the NGL II Agreement, are fully paid (to the extent required under the NGL II Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act); and the Operating Partnership owns such membership interests free and clear of all liens, encumbrances, security interests, charges or claims (i) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Operating Partnership as debtor is on file in the office of the Secretary of State of Delaware or (ii) otherwise known to such counsel, without independent investigation, in each case other than those created by or arising under the Delaware LLC Act, Permitted Liens, applicable securities laws and any restrictions set forth in the NGL II Agreement.
(xiii) Except for rights described in the Final Prospectus, or for rights that have been waived, there are no preemptive rights or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any partnership or limited liability company interests in the ▇▇▇▇▇▇ Parties, in each case pursuant to the organizational documents or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts agreement or other documents of a character required to be filed instrument listed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇Party is a party or by which any of them may be bound. To such counsel’s knowledge, neither the filing of the Registration Statement nor the offering or sale of the Units as contemplated by this Agreement gives rise to any rights for or relating to the registration of any Units or other securities of any ▇▇▇▇▇▇ LLPParty, counsel except for rights described in the UnderwritersPreliminary Prospectus Supplement and the Final Prospectus or for such rights that have been waived. To such counsel’s knowledge, such opinion except as described in the Preliminary Prospectus Supplement and the Final Prospectus, there are no outstanding options or opinions, dated the Closing Date, with respect warrants to such matters as the Underwriters may reasonably require. ▇▇purchase partnership or limited liability company interests in any ▇▇▇▇▇▇ & ▇▇Party.
(xiv) The Partnership has all necessary limited partnership power and authority to issue, sell and deliver the Units, in accordance with and upon the terms and conditions set forth in this Agreement, the Partnership Agreement, the Registration Statement, Disclosure Package and the Final Prospectus.
(xv) This Agreement has been duly authorized and validly executed and delivered by each of the ▇▇▇▇▇▇ LLP may rely Parties.
(ixvi) as Each of the Operative Agreements to those matters that relate to which any of the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. Parties is a party has been duly authorized and validly executed and delivered by the ▇▇▇▇▇▇ delivered pursuant to Section 6(b) Parties that are parties thereto. Assuming due authorization, execution and 6(c)delivery by each party other than a ▇▇▇▇▇▇ Party, respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form each of the executed copy of the letter to be delivered prior to the execution of this Operative Agreements (other than any Operative Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement (Martin Midstream Partners Lp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company Fund and the Investment Adviser contained herein as of the Applicable Execution Time, the Closing Date and any settlement date hereof and the Closing Datepursuant to Section 4 hereof, to the accuracy of the statements of the Company Fund and the Advisers made in any certificates pursuant to the provisions hereof, to the performance by the Company Fund or the Advisers of its their obligations hereunder and to the following additional conditions:
(a) The Prospectus shall and any supplements thereto have been filed with in the Commission pursuant to Rule 424(b) under the Act manner and within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433497; and no stop order suspending the effectiveness of the Registration Statement or any part thereof notice objecting to its use or order pursuant to Section 8(e) of the 1940 Act shall have been issued and no proceeding proceedings for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated instituted or threatened by the Commission; , and all requests any request of the Commission for additional information on (to be included in the part of the Commission Registration Statement or Prospectus or otherwise) shall have been complied with to your reasonable satisfactionin all material respects.
(b) King The Fund shall have requested and caused Ropes & Spalding ▇▇▇▇ LLP, counsel for the CompanyFund, shall to have furnished to the Underwriters an opinion or opinionsRepresentatives their opinion, dated the Closing DateDate and addressed to the Representatives, to the effect that:
(i) This Agreement The Registration Statement and all post-effective amendments filed with the Commission on or before the Closing Date, if any, have been declared effective under the Act; the filing of the Prospectus, and any supplements thereto, pursuant to Rule 497 under the Act has been duly authorizedmade in the manner and within the time period required by Rule 497; and based upon oral inquiries to the Commission staff, executed no stop order suspending the effectiveness of the Registration Statement has been issued and delivered no proceeding for any such purpose is pending or threatened by the CompanyCommission;
(ii) The Indenture Fund has been duly organized and is validly existing and in good standing as an unincorporated voluntary association (commonly known as a business trust) under and by virtue of the laws of The Commonwealth of Massachusetts and has full power and authority to own or lease its properties and to conduct its business as described in the Preliminary Prospectus and the Prospectus. To such counsel’s knowledge, the Fund has no subsidiaries. The Certificate of Designation relating to the Fund’s conduct of business in the State of New York is on file with the Department of State of the State of New York, and the Fund is entitled to transact intrastate business in the State of California;
(iii) The Fund’s authorized capitalization is as set forth in the Preliminary Prospectus and the Prospectus; the capital stock of the Fund conforms in all material respects to the description thereof contained in the Registration Statement, the Preliminary Prospectus and the Prospectus. The Fund has an indefinite number of authorized common shares of beneficial interest, par value $0.00001 per share. All issued and outstanding common shares of beneficial interest of the Fund have been duly authorized and are validly issued, fully paid and, subject to the following paragraph, non-assessable. The Securities have been duly authorized and, when issued and delivered to the Underwriters against payment therefor in accordance with the terms of this Agreement, will be validly issued, fully paid and, subject to the following paragraph, non-assessable. Except as contemplated by this Agreement and as described in the Preliminary Prospectus and the Prospectus, no person is entitled to any preemptive or other similar rights with respect to the Securities;
(iv) Under Massachusetts law, shareholders could, under certain circumstances, be held personally liable for the obligations of the Fund. However, the Fund’s Declaration of Trust disclaims shareholder liability for acts or obligations of the Fund and requires that notice of such disclaimer be given in each agreement, obligation, and instrument entered into or executed by the Fund or the Trustees. The Declaration of Trust provides for indemnification out of the property of the Fund for all loss and expense of any shareholder held personally liable solely by reason of being or having been a shareholder of the Fund. Thus, the risk of a shareholder’s incurring financial loss on account of being a shareholder is limited to circumstances in which the Fund itself would be unable to meet its obligations.
(v) The Fund was duly registered under Section 8(a) of the 1940 Act upon receipt by the Commission of the 1940 Act Notification. To our knowledge after oral inquiry of the Commission, the Commission has not issued to the Fund notice of any hearing or other proceeding to consider suspension or revocation of such registration. All required action has been taken by the Fund under the Act, the 1940 Act and the Rules and Regulations in connection with the issuance and sale of the Securities pursuant to this Agreement;
(vi) The Fund has full power and authority to enter into each of the Fund Agreements and to perform all of the terms and provisions thereof to be carried out by it. Each Fund Agreement has been duly and validly authorized, executed and delivered by the Company Fund. Each of the Fund Agreements complies in all material respects with all applicable provisions of the 1940 Act and the Advisers Act, as the case may be, and the rules and regulations thereunder (except we express no opinion as to the reasonableness or fairness of compensation payable under such agreements). Assuming due authorization, execution and delivery by the other parties thereto, each Fund Agreement constitutes a the legal, valid and binding agreement obligation of the CompanyFund, enforceable against the Fund in accordance with its termsterms (except we express no opinion as to the reasonableness or fairness of compensation payable under such agreements), subject, subject as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer reorganization and similar other laws of general applicability relating to or affecting the creditors’ rights and remedies to general equity principles (regardless of creditors generallywhether enforceability is considered in a proceeding in equity or at law), and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Actincluding without limitation specific performance regarding intellectual property rights;
(iiivii) The issuance, execution Fund has full power and delivery authority to enter into this Agreement and to perform all of the Notes have terms and provisions thereof to be carried out by it. This Agreement has been duly and validly authorized authorized, executed and delivered by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equityFund;
(ivviii) The statements set forth in None of (a) the Pricing Disclosure Package execution and delivery by the Prospectus under the caption “Description Fund of this Agreement or any of the Notes” insofar as these statements purport to describe Fund Agreements, (b) the provisions issue and sale by the Fund of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package Securities as contemplated by this Agreement and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinionperformance by the Fund of its obligations under this Agreement, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel Dividend Reinvestment Plan or any of the Company, to Fund Agreements or consummation by the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws Fund of the State of Georgiaother transactions contemplated by this Agreement, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all Dividend Reinvestment Plan or any of the issued shares Fund Agreements conflicts or will conflict with, or results or will result in a breach of, the Declaration of capital stock of Trust or the Company have been duly and validly authorized and issued and are fully paid and nonBy-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns Laws or leases properties any agreement or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending instrument to which the Company or any of its subsidiaries Fund is a party or of by which the Fund is bound (and that is filed as an exhibit to the Registration Statement) or violates or will violate any property of the Company federal or Massachusetts statute, law or regulation, or any judgment, injunction, order or decree of its subsidiaries is the subject any federal or Massachusetts governmental agency or body, which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, violation would individually or in the aggregate have a material adverse effect on the current condition or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations business of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersFund;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(viiix) No consent, approval, authorization, order, registration authorization or qualification order of or registration with any court or governmental agency or body or securities exchange or securities association is required by the Fund for the issuance and sale of the Notes or the consummation by the Company Fund of the transactions contemplated by in this AgreementAgreement and the Fund Agreements, except such as (a) have been obtained under the Act, the 1940 Act or the Exchange Act and such consents, approvals, authorizations, registrations or qualifications as (b) may be required by the NYSE or the NASD or under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes Securities by the UnderwritersUnderwriters pursuant to this Agreement;
(viiix) The Company is not andTo such counsel’s knowledge, based upon a letter dated January 25, 2007, from ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice President, Global Corporate Client Group, New York Stock Exchange, authorizing the Securities for listing on such Exchange, the Securities have been authorized for listing on the New York Stock Exchange and will be admitted and authorized for trading, subject to official notice of issuance, and to our knowledge after giving effect to the offering and sale due inquiry, including oral inquiries of the Notes and Commission staff on February 27, 2007, the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Exchange Act of 1940, as amendedRegistration Statement has become effective;
(ixxi) To such counsel’s knowledge, there are no legal or governmental proceedings pending or threatened against the Fund, or to which the Fund or any of its properties is subject, that are required to be described in the Preliminary Prospectus or the Prospectus but are not described therein as required;
(xii) To such counsel’s knowledge, there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Preliminary Prospectus or the Prospectus or to be filed as an exhibit to the Registration Statement which have not been so described or filed as an exhibit or incorporated therein by reference;
(xiii) Each of the sections in the Preliminary Prospectus and the Prospectus entitled (i) “Tax Matters,” to the extent that they state matters of United States law or legal conclusions with respect thereto, and (ii) “Anti-Takeover and Other Provisions in the Declaration of Trust,” to the extent hat they summarize the Declaration of Trust, the By-Laws or matters of Massachusetts law or legal conclusions with respect thereto, present a fair summary of the laws and documents described therein; and
(xiv) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery Statement (other than except for the financial statements and related schedules, the notes thereto and any schedules and other financial information data contained or incorporated by reference therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statementor omitted therefrom, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need we express no opinion), when they became effective or were filed with at the CommissionEffective Date, and the Preliminary Prospectus and the Prospectus (except as aforesaid), as of the case may bedate thereof, complied as to form in all material respects with the applicable requirements of the Act or the Exchange Act, as applicable, and the rules 1940 Act and regulations of the Commission thereunderRules and Regulations. In addition, although such Such counsel need shall also state that it has not pass upon or assume any responsibility for independently verified the accuracy, completeness or fairness of the statements made or the information contained in the Registration Statement, the Preliminary Prospectus or the Prospectus, or the price to the public, the number of Underwritten Securities and the number of Option Securities to be included on the cover page of the Prospectus (together, “Pricing Disclosure Package or Information”) and, except in the respects and to the extent set forth in paragraphs (iii), (xii) and (xiii) above, such counsel is not passing upon and does not assume any responsibility therefor. In the course of the preparation by the Fund of the Registration Statement, the Preliminary Prospectus and the Prospectus, such counsel shall confirm has participated in discussions with your representatives and employees and officers of the Fund and the Advisers and in discussions with the Fund’s independent registered public accounting firm, in which the business and the affairs of the Fund and the Advisers and the contents of the Registration Statement and the Preliminary Prospectus and the Prospectus were discussed. There is no assurance that he all material facts as to the Fund, the Advisers and their affairs were disclosed to such counsel or that its familiarity with the Fund and the Investment Adviser or any familiarity with the Sub-Adviser is such that such counsel would have necessarily recognized the materiality of such facts as were disclosed to it, and that such counsel has no reason to believe that:
(1) each part a large extent relied upon statements of representatives of the Fund and the Advisers as to the materiality of the facts disclosed to it. Moreover, many of the determinations required to be made in preparation of the Registration Statement, the Preliminary Prospectus and the Prospectus involve matters of a non-legal nature. Further, such counsel is relying exclusively on information provided to it by representatives of the Underwriters and the Investment Adviser with respect to the Pricing Information and has made no independent inquiries regarding the accuracy or veracity thereof. Subject to the foregoing, on the basis of information that such counsel has gained in the course of performing the services referred to above, such opinion shall also provide that no facts have come to such counsel’s attention that would lead it to believe that, (i) as of its the effective datedate of the Registration Statement, the Registration Statement contained an any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
, (2ii) the Pricing Disclosure Package, as of the Applicable Timetime of the pricing of the offering of the Underwritten Securities, the Preliminary Prospectus and the Pricing Information, when taken together as a whole, contained an any untrue statement of a material fact or omitted to state any a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
, or (3iii) the Prospectus, as of its date and as of on the date hereofClosing Date, the Prospectus contained or contains an any untrue statement of a material fact or omitted or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
misleading (4) in each case, other than the financial statements and schedules, the notes thereto and any amendment to the Registration Statement is required to be filed schedules and other financial or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed accounting data contained or incorporated by reference therein or described omitted therefrom, as required; except that, with respect to clauses (1which such counsel expresses no opinion), (2), (3) and (4) above. In rendering such opinion, such counsel need not express a belief with respect may rely as to matters of fact, to the financial statements extent they deem proper, on certificates of responsible officers of the Fund, the Advisers and related schedules and other financial information contained therein, and with respect public officials. References to clause the Prospectus in this paragraph (ib) above, such counsel need not express a belief with respect to shall also include any Form T-1supplements thereto at the Closing Date.
(dc) The Underwriters You shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated on the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the Date an opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c)▇, respectively.
(e) At Chief Legal Officer of the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or lettersInvestment Adviser, dated the respective dates of delivery thereof, in form Closing Date and substance satisfactory addressed to youthe Representatives, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).that:
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since The Investment Adviser is a limited liability company and is validly existing and in good standing under the date Delaware Limited Liability Company Act (6 Del. C §. 18-101, et seq.) with all necessary limited liability company power and authority to enter into and deliver this Agreement, the Management Agreement, the Portfolio Management Agreement, the Structuring Fee Agreement and the Additional Compensation Agreement (together, the “Investment Adviser Transaction Documents”) and perform its obligations thereunder and to carry on its business as it is now being conducted and as described in the Preliminary Prospectus and the Prospectus. Based solely on (1) a search report of the latest audited financial statements included or incorporated corporate records of the Secretary of State of the State of California, prepared by reference Corporation Service Company, dated February __, 2007, showing the “status” of the Investment Adviser as “In Good Standing,” and (2) certificates from public officials in the Pricing Prospectus any loss or interference with its States of New York and Connecticut, such counsel confirms that the Investment Adviser is qualified to do business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectusfollowing States: California, New York and (ii) since Connecticut, such States being those in which its ownership or leasing of property or its conducting of business may require such qualification and where failure to so qualify may have a material adverse effect on the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt ability of the Company or any of Investment Adviser to perform its subsidiaries or any change, or any development involving a prospective change, in or affecting obligations under the general affairs, management, financial position, stockholders’ equity or results of operations of Management Agreement and the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Portfolio Management Agreement.
(hii) On or after The execution, delivery and performance of the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined Investment Adviser Transaction Documents by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall Investment Adviser have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any been duly authorized by all necessary limited liability company action of the Company’s debt securities or preferred stock.
(i) On or after Investment Adviser and no other actions on the Applicable Time there shall not have occurred any part of the following: (i) a suspension Investment Adviser or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis its unitholders or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment subsidiary of the Representatives makes it impracticable Investment Adviser or inadvisable its unitholders is necessary to proceed with the public offering or the delivery of the Notes on the terms authorize and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.c
Appears in 1 contract
Sources: Underwriting Agreement (Nicholas-Applegate Equity & Convertible Income Fund)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Republic made in any certificates pursuant to the provisions hereof, to the performance by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereofof this Agreement; the and any final term sheet contemplated by Section 5(A)(a4(a) hereof, and any other material required to be filed by the Company Republic pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for The Head or Acting Head of the Company, Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Underwriters an opinion or opinionsRepresentatives such counsel’s written opinion, dated the Closing Date, to the effect that:
(i) This Agreement The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly Republic and validly authorizedthe Agreements constitute legal, executed and delivered by the Company and constitutes a valid and binding agreement obligations of the Company, Republic enforceable in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iiiiv) The issuance, execution and delivery of the Notes Securities have been duly and validly authorized by the Company and, when authenticated by the Indenture Trusteeauthorized, executed, issued and delivered by the Republic in accordance with the manner provided in Fiscal Agency Agreement, and, assuming due authentication and delivery by the Indenture will Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and Republic enforceable against the Company in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries Securities) of the matters set forth therein Republic that will rank equal in right of payment with all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel other present and future unsecured and unsubordinated External Indebtedness of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersRepublic;
(vi) The There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of this Agreementany of the Agreements, the issuance and sale issue of the Notes, and the consummation of the transactions and performance of the obligations Securities as contemplated herein and therein contemplated will not conflict with in the Prospectus, or result in a breach the performance or violation observance by the Republic of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Agreements or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesSecurities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the issuance due execution, delivery and sale performance by the Republic of any of the Notes Agreements or the consummation by Securities, (B) the Company validity or enforceability against the Republic of any of the transactions contemplated by this AgreementAgreements or the Securities, or (C) the issue, sale or delivery of the Securities, except such as have been obtained under for (I) Law 533 of November 11, 1999, (II) the Act and such consentssurviving portions of Law 185 of January 27, approvals1995 which were not repealed or amended by Law 533 of November 11, authorizations1999, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with (III) the purchase and distribution relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Law 1624 of April 29, 2013, (VII) Decree No. 2681 of December 29, 1993, (VIII) Resolution No. 3727 dated October 20, 2014 of the Notes Ministerio de Hacienda y Crédito Público, (IX) CONPES Document No. 3781 DNP:SC-DEE MINHACIENDA, dated November 8, 2013; (X) Authorization by Act of the UnderwritersComisión Interparlamentaria de Crédito Público adopted in its meeting held on November 27, 2013 and (XI) External Resolution No. 8 dated August 29, 2014 of the Board of Governors of the Central Bank of Colombia (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) The Company To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not andnecessary that any Agreement or the Securities be registered, after giving effect recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 3727 dated October 20, 2014 issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) the publication of the Agreements in the Sistema Electrónico de Contratación Pública-SECOP of the Republic, to satisfy the requirement for such publications, (B) notice to the offering Banco de la República concerning the external indebtedness represented by the Securities and sale (C) in accordance with External Resolution No. 8 of August 29, 2014, issued by the Board of Governors of the Notes Central Bank of Colombia, the delivery of written information from the Director General of Public Credit and the application National Treasury of the proceeds thereofMinisterio de Hacienda y Crédito Público to the Board of Governors of the Central Bank of Colombia regarding the proposed issuance of the Securities, will not each of which shall be an “investment company,” as such term is defined in effected on or prior to the Investment Company Act of 1940, as amendedClosing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, subject to the terms, conditions, limitations or exceptions under (i) Articles 192, 195, 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo) applicable to administrative or judicial proceedings initiated on or after July 2, 2012; and (ii) Articles 684 and 513 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), (which will be gradually superseded by Articles 593, 594 and 595 et al subject to the entry into force of Law 1564 of 2012 (Código General del Proceso) pursuant to the terms of article 627, paragraph 6 thereof) and Article 19 of Decree 111 of January 15, 1996, pursuant to which the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur,” subject to the provisions of (i) Article 693 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), which will be gradually superseded by article 605 subject to the entry into force of Law 1564 of 2012 (Código General del Proceso) pursuant to the terms of article 627, paragraph 6 thereof), which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic; and (ii) subject to compliance with the provisions of Article 694 and 695 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), (which will be gradually superseded by articles 606 and 607, respectively, subject to the entry into force of Law 1564 of 2012 (Código General del Proceso) pursuant to the terms of article 627, paragraph 6 thereof). The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus and any further amendments and supplements theretoProspectus, as applicableamended or supplemented, made and their filing with the Commission have been duly authorized by and on behalf of the Company prior to the Time of Delivery (other than the financial statements Republic, and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements amended, has been duly executed by and on behalf of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicableRepublic, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained information in the Registration Statement, the Pricing Disclosure Package or as amended, and the Prospectus, such counsel shall confirm that he as amended or supplemented, stated on the authority of public officials of the Republic has no reason to believe that:been stated in their official capacities thereunto duly authorized;
(1xvii) each part of The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of its effective dateColombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Registration Statement, at the respective times each part became effective, contained 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;
(2B) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted No information has come to state any material fact necessary in order such counsel’s attention that causes such counsel to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) believe that the Prospectus, as of its date and as of the date hereofthereof or on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; orand
(4C) any amendment No information has come to the Registration Statement is required to be filed or such counsel’s attention that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, causes such counsel need not express to believe that the documents specified in a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect schedule to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to counsel’s letter, consisting of those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions Package, as of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by Time, contained any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.untrue s
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Republic made in any certificates pursuant to the provisions hereof, to the performance by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereofof this Agreement; the and any final term sheet contemplated by Section 5(A)(a4(a) hereof, and any other material required to be filed by the Company Republic pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.;
(b) King & Spalding LLP, counsel for The Head or Acting Head of the Company, Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Underwriters an opinion or opinionsRepresentatives such counsel’s written opinion, dated the Closing Date, to the effect that:
(i) This Agreement The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly Republic and validly authorizedthe Agreements constitute legal, executed and delivered by the Company and constitutes a valid and binding agreement obligations of the Company, Republic enforceable in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iiiiv) The issuance, execution and delivery of the Notes Securities have been duly and validly authorized by the Company and, when authenticated by the Indenture Trusteeauthorized, executed, issued and delivered by the Republic in accordance with the manner provided in Fiscal Agency Agreement, and, assuming due authentication and delivery by the Indenture will Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and Republic enforceable against the Company in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries Securities) of the matters set forth therein Republic that will rank equal in right of payment with all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel other present and future unsecured and unsubordinated External Indebtedness of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersRepublic;
(vi) The There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of this Agreementany of the Agreements, the issuance and sale issue of the Notes, and the consummation of the transactions and performance of the obligations Securities as contemplated herein and therein contemplated will not conflict with in the Prospectus, or result in a breach the performance or violation observance by the Republic of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Agreements or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesSecurities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the issuance due execution, delivery and sale performance by the Republic of any of the Notes Agreements or the consummation by Securities, (B) the Company validity or enforceability against the Republic of any of the transactions contemplated by this AgreementAgreements or the Securities, or (C) the issue, sale or delivery of the Securities, except such as have been obtained under for (I) Law 533 of November 11, 1999, (II) the Act and such consentssurviving portions of Law 185 of January 27, approvals1995 which were not repealed or amended by Law 533 of November 11, authorizations1999, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with (III) the purchase and distribution relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Decree No. 2681 of December 29, 1993, (VI) Resolution No. 012 dated January 6, 2009 of the Notes Ministerio de Hacienda y Crédito Público, (VII) CONPES Document No. 3537 MINHACIENDA, DNP:SC, dated July 31, 2008, (VIII) Authorization by Act of the UnderwritersComisión Interparlamentaria de Crédito Público adopted in its meeting held on August 20, 2008 and (IX) External Resolution No. 9 dated September 19, 2008 of the Board of Governors of the Central Bank of Colombia (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) The Company To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not andnecessary that any Agreement or the Securities be registered, after giving effect recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit and the National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 012 dated January 6, 2009 issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) a summary of the Agreements in the Diario Único de Contratación Pública of the Republic, to satisfy the requirement for such publications, (B) notice to the offering Banco de la República concerning the external indebtedness represented by the Securities and sale (C) in accordance with External Resolution No. 9 of September 19, 2008, issued by the Junta Directiva del Banco de la República, the delivery of written information from the Director General of Public Credit and the National Treasury of the Notes and Ministerio de Hacienda y Crédito Público to the application Junta Directiva del Banco de la República regarding the proposed issuance of the proceeds thereofSecurities, will not each of which shall be an “investment company,” as such term is defined in effected on or prior to the Investment Company Act of 1940, as amendedClosing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that, the Securities are held by a non-resident and non-domiciliary of the Republic.
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process; provided, that, except as provided under Article 177 of the Código Contencioso Administrativo of the Republic, which does not override Articles 684 or 513 of the Código de Procedimiento Civil and Article 19 of Decree 111 of January 15, 1996 of the Republic, the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur”, subject to the provisions of Article 693 of the Código de Procedimiento Civil which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic and subject to compliance with the provisions of Article 694 of the Código de Procedimiento Civil. The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus and any further amendments and supplements theretoProspectus, as applicableamended or supplemented, made and their filing with the Commission have been duly authorized by and on behalf of the Company prior to the Time of Delivery (other than the financial statements Republic, and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements amended, has been duly executed by and on behalf of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicableRepublic, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained information in the Registration Statement, the Pricing Disclosure Package or as amended, and the Prospectus, such counsel shall confirm that he as amended or supplemented, stated on the authority of public officials of the Republic has no reason to believe that:been stated in their official capacities thereunto duly authorized;
(1xvii) each part of The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of its effective dateColombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Registration Statement, at the respective times each part became effective, contained 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;
(2B) No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof or on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Pricing Disclosure Package, as of the Applicable Time, contained an any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) . Such counsel may state that he or she is not passing upon and does not assume any responsibility for the Prospectusaccuracy, as of its date and as completeness or fairness of the date hereof, statements contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
Prospectus (4) any amendment except to the Registration Statement is required to be filed or extent expressly set forth in (xvii) above) and that there are any contracts or other documents such counsel makes no representation that such counsel has independently verified the accuracy, completeness and fairness of a character required to be filed such statements (except as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1aforesaid), and that such counsel’s opinions referred to in this subsection (2)b) are limited to matters of Colombian law and, (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters insofar as the Underwriters opinion required by this subsection (b) is affected by matters of United States or New York law, it may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, be given in reliance upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
required by subsection (e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (fc) of this Section 7 and that, insofar as the foregoing opinions relate to such other matters as you may reasonably request.the legality, validit
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The respective obligations of the several Underwriters to purchase the Notes shall be hereunder are subject to the accuracy accuracy, when made and as of the Applicable Time and on such Closing Date, of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and the Closing Dateherein, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) Registration Statement has become effective under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereofSecurities Act, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof, preventing or suspending the use of any Base Prospectus, any Preliminary Prospectus, the Prospectus or any part thereof shall have been issued and no proceeding proceedings for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) Section 8A under the Securities Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; , and all requests for additional information on the part of the Commission (to be included or incorporated by reference in the Registration Statement or the Prospectus or otherwise) shall have been complied with to your the reasonable satisfactionsatisfaction of the Representative; the Rule 462(b) Registration Statement, if any and the Prospectus shall have been filed with the Commission within the applicable time period prescribed for such filing by, and in compliance with, the Rules and Regulations and in accordance with Section 4(a) , and the Rule 462(b) Registration Statement, if any, shall have become effective immediately upon its filing with the Commission; and FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby.
(b) King & Spalding LLPNone of the Underwriters shall have discovered and disclosed to the Company on or prior to such Closing Date that the Registration Statement or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the CompanyUnderwriters, shall have furnished is material or omits to state any fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading, or that the General Disclosure Package or the Prospectus or any amendment or supplement thereto contains an untrue statement of fact which, in the opinion of such counsel, is material or omits to state any fact which, in the opinion of such counsel, is material and is necessary in order to make the statements, in the light of the circumstances in which they were made, not misleading.
(c) All corporate proceedings and other legal matters incident to the Underwriters an opinion or opinionsauthorization, dated form and validity of each of this Agreement, the Closing DateWarrant Agreement, to the effect that:
(i) This Agreement has been duly authorizedSecurities, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorizedRegistration Statement, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing General Disclosure Package and the Prospectus under and all other legal matters relating to this Agreement and the caption “Description of Warrant Agreement and the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein transactions contemplated hereby shall be reasonably satisfactory in all material respects; and
(v) The statements set forth in respects to counsel for the Pricing Disclosure Package Underwriters, and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. On the Closing Date, the Company shall have delivered to the Representative an executed copy of the Warrant Agreement.
(d) ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of LLP shall have furnished to the Representative such counsel’s written opinion and negative assurance statement, as counsel to the Company, addressed to the effect that:
(i) The Company has been duly incorporated Underwriters and is validly existing as a corporation dated such Closing Date, in good standing under the laws of the State of Georgia, form and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely substance acceptable to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1Representative.
(de) The Underwriters Representative shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ the Company’s intellectual property counsel written opinion and negative assurance statement, dated such Closing Date, in form and substance acceptable to the Representative.
(f) The Representative shall have received from Blank Rome LLP, counsel for the Underwriters, such counsel’s written opinion or opinionsand negative assurance statement, dated the such Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP Company shall have furnished to you such counsel such documents as they request for enabling them to pass upon such matters.
(g) At the time of the execution of this Agreement, the Representative shall have received from Wolf & Company, P.C. a letter or lettersletter, addressed to the Underwriters, executed and dated the respective dates of delivery thereofsuch date, in form and substance satisfactory to you, the Representative (i) confirming that they are an independent registered accounting firm with respect to the effect set forth in Annex I (a form Company and any Subsidiary within the meaning of the executed copy Securities Act and the Rules and Regulations and PCAOB and (ii) stating the conclusions and findings of such firm, of the letter type ordinarily included in accountants’ “comfort letters” to be delivered prior underwriters, with respect to the execution of this Agreement is attached as Annex I(afinancial statements and certain financial information contained or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus.
(h) and a form of the executed letter to be delivered on On the effective date of any post-effective amendment to any Registration Statement and on such Closing Date, the Registration StatementRepresentative shall have received a letter (the “bring-down letter”) from Wolf & Company, P.C. addressed to the Underwriters and dated such Closing Date, confirming, as of the Time date of Deliverythe bring-down letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is attached given in the General Disclosure Package and the Prospectus, as Annex I(bthe case may be, as of a date not more than three (3) business days prior to the date of the bring-down letter)), the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to the financial information and other matters covered by its letter delivered to the Representative concurrently with the execution of this Agreement pursuant to paragraph (i) of this Section 6.
(fi) Neither The Company shall have furnished to the Company nor any Representative a certificate, dated such Closing Date, of its Significant Subsidiaries shall have Chief Financial Officer in form and substance acceptable to the Representative.
(ij) sustained since Since the date of the latest audited financial statements included in the General Disclosure Package or incorporated by reference in the Pricing Prospectus General Disclosure Package as of the date hereof, (i) neither the Company nor any Subsidiary shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing ProspectusGeneral Disclosure Package, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or nor any of its subsidiaries Subsidiary, or any change, or any development involving a prospective change, in or affecting the business, general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiariesany Subsidiary, otherwise than as set forth or contemplated in the Pricing ProspectusGeneral Disclosure Package, the effect of which, in any such case described in clause (i) or (ii)) of this paragraph (j) , is is, in the judgment of the Representatives Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering sale or the delivery of the Notes Securities on the terms and in the manner contemplated in the Pricing General Disclosure Package or the ProspectusPackage.
(gk) The Company No action shall have complied with been taken and no law, statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the provisions issuance or sale of the first sentence Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of Section 5(A)(dthe Company or any Subsidiary; and no injunction, restraining order or order of any other nature by any federal or state court of competent jurisdiction shall have been issued which would prevent the issuance or sale of the Securities or materially and adversely affect or potentially materially and adversely affect the business or operations of the Company or any Subsidiary.
(l) hereof with respect Subsequent to the furnishing of prospectuses on the business day next succeeding the date execution and delivery of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; , Nasdaq Global Market or the NYSE MKT or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or maximum range for prices shall have been established on any such exchange or such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction, (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general banking moratorium on commercial banking activities shall have been declared by either Federal or New York or Georgia state authorities or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States; , (iviii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation of in hostilities involving the United States States, or the there shall have been a declaration by the United States of a national emergency or war by the United States or (viv) the occurrence of any other calamity or crisis or any there shall have occurred such a material adverse change in financialgeneral economic, political or economic financial conditions (or the effect of international conditions on the financial markets in the United States or elsewhereshall be such) as to make it, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it Representative, impracticable or inadvisable to proceed with the public offering sale or the delivery of the Notes Securities on the terms and in the manner contemplated in the Pricing General Disclosure Package or and the Prospectus.
(jm) The Representative shall have received the written agreements, substantially in the form of Exhibit A hereto, of the persons and entities listed in Schedule C to this Agreement.
(n) The Underwriters shall have received clearance from FINRA as to the amount of compensation allowable or payable to the Underwriters.
(o) The Company shall have furnished or caused to the Representative a certificate, dated such Closing Date, of its Chief Executive Officer and its Chief Financial Officer stating that (i) such officers have carefully examined the Registration Statement, the General Disclosure Package and the Prospectus and, in their opinion, the Registration Statement and each amendment thereto, at the Applicable Time, as of the date of this Agreement and as of such Closing Date did not include any untrue statement of a material fact and did not omit to state a material fact required to be furnished stated therein or necessary to you at make the Time of Delivery certificates of officers statements therein not misleading, and the General Disclosure Package, as of the Company Applicable Time and trustees satisfactory as of such Closing Date, the Prospectus and each amendment or supplement thereto, as of the respective date thereof and as of such Closing Date, did not include any untrue statement of a material fact and did not omit to you as state a material fact necessary in order to make the statements therein, in the light of the circumstances in which they were made, not misleading, (ii) since the effective date of the Registration Statement, no event has occurred which should have been, but has not been, set forth in a supplement or amendment to the accuracy Registration Statement, the General Disclosure Package or the Prospectus, (iii) to their knowledge after reasonable investigation, as of such Closing Date, the representations and warranties of the Company herein at in this Agreement are true and as of such time, as to the performance by correct and the Company of has complied with all of agreements and satisfied all conditions on its respective obligations hereunder part to be performed or satisfied hereunder at or prior to such timeClosing Date, as (iv) there has not been, subsequent to the matters date of the most recent audited financial statements included or incorporated by reference in the General Disclosure Package, any material adverse change in the financial position or results of operations of the Company and its Subsidiaries, or any change or development that, singularly or in the aggregate, would involve a material adverse change or prospective material adverse change, in or affecting the condition (financial or otherwise), results of operations, business, assets or prospects of the Company or any Subsidiary, except as set forth in subsections the Prospectus, and (av) and (f) of this Section and as to such other matters as you requested by the Representative.
(p) The Company shall have prepared and filed with the Commission a Current Report on Form 8-K with respect to the transactions contemplated hereby, including as an exhibit thereto this Agreement and any other documents relating thereto.
(q) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act at or before 5:30 p.m., New York time, on the second full business day after the date of this Agreement (or such earlier time as may be required under the Securities Act).
(r) On or prior to such Closing Date, the Company shall have furnished to the Representative such further certificates and documents as the Representative may reasonably request. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
Appears in 1 contract
Sources: Underwriting Agreement (Invivo Therapeutics Holdings Corp.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Republic made in any certificates pursuant to the provisions hereof, to the performance by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereofof this Agreement; the and any final term sheet contemplated by Section 5(A)(a4(a) hereof, and any other material required to be filed by the Company Republic pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for The Head or Acting Head of the Company, Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Underwriters an opinion or opinionsRepresentatives such counsel’s written opinion, dated the Closing Date, to the effect that:
(i) This Agreement The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly Republic and validly authorizedthe Agreements constitute legal, executed and delivered by the Company and constitutes a valid and binding agreement obligations of the Company, Republic enforceable in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iiiiv) The issuance, execution and delivery of the Notes Securities have been duly and validly authorized by the Company and, when authenticated by the Indenture Trusteeauthorized, executed, issued and delivered by the Republic in accordance with the manner provided in Indenture, and, assuming due authentication and delivery by the Indenture will Trustee, the Securities constitute legal, valid and binding obligations of the Company, Republic enforceable in accordance with their terms entitled to the benefits of provided by the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equityIndenture;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries Securities) of the matters set forth therein Republic that will rank equal in right of payment with all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel other present and future unsecured and unsubordinated External Indebtedness of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersRepublic;
(vi) The There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of this Agreementany of the Agreements, the issuance and sale issue of the Notes, and the consummation of the transactions and performance of the obligations Securities as contemplated herein and therein contemplated will not conflict with in the Prospectus, or result in a breach the performance or violation observance by the Republic of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Agreements or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesSecurities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the issuance due execution, delivery and sale performance by the Republic of any of the Notes Agreements or the consummation by Securities, (B) the Company validity or enforceability against the Republic of any of the transactions contemplated by this AgreementAgreements or the Securities, or (C) the issue, sale or delivery of the Securities, except such as have been obtained under for (I) Law 533 of November 11, 1999, (II) the Act and such consentssurviving portions of Law 185 of January 27, approvals1995 which were not repealed or amended by Law 533 of November 11, authorizations1999, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with (III) the purchase and distribution relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Law 1624 of April 29, 2013, (VII) Decree No. 2681 of December 29, 1993, (VIII) Resolution No. 0712 dated March 20, 2015 of the Notes Ministerio de Hacienda y Crédito Público, (IX) CONPES Document No. 3818 DNP:SC-DEE MINHACIENDA, dated October 2, 2014; (X) Authorization by Act of the UnderwritersComisión Interparlamentaria de Crédito Público adopted in its meeting held on October 22, 2014; (XI) Authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meeting held on February 25, 2015; and (XII) External Resolution No. 8 dated August 29, 2014 of the Board of Governors of the Central Bank of Colombia (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) The Company To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not andnecessary that any Agreement or the Securities be registered, after giving effect recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General or Acting Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 0712 dated March 20, 2015 issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) the publication of the Agreements in the Sistema Electrónico de Contratación Pública-SECOP of the Republic, to satisfy the requirement for such publications, (B) notice to the offering Banco de la República concerning the external indebtedness represented by the Securities and sale (C) in accordance with External Resolution No. 8 of August 29, 2014, issued by the Board of Governors of the Notes Central Bank of Colombia, the delivery of written information from the Director General or the Acting Director General of Public Credit and the application National Treasury of the proceeds thereofMinisterio de Hacienda y Crédito Público to the Board of Governors of the Central Bank of Colombia regarding the proposed issuance of the Securities, will not each of which shall be an “investment company,” as such term is defined in effected on or prior to the Investment Company Act of 1940, as amendedClosing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, subject to the terms, conditions, limitations or exceptions under (i) Articles 192, 195, 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo); and (ii) Articles 684 and 513 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), (which will be gradually superseded by Articles 593, 594 and 595 et al subject to the entry into force of Law 1564 of 2012 (Código General del Proceso) pursuant to the terms of article 627, paragraph 6 thereof) and Article 19 of Decree 111 of January 15, 1996, pursuant to which the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Indenture and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Indenture and the Securities as provided in Section 15 hereof, Section 9.7(a) of the Indenture and Section 16(a) of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur,” subject to the provisions of (i) Article 693 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), which will be gradually superseded by article 605 (et al) subject to the entry into force of Law 1564 of 2012 (Código General del Proceso) pursuant to the terms of article 627, paragraph 6 thereof), which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic; and (ii) subject to compliance with the provisions of Article 694 and 695 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), (which will be gradually superseded by articles 606 and 607, respectively, subject to the entry into force of Law 1564 of 2012 pursuant to the terms of article 627, paragraph 6 thereof). The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus and any further amendments and supplements theretoProspectus, as applicableamended or supplemented, made and their filing with the Commission have been duly authorized by and on behalf of the Company prior to the Time of Delivery (other than the financial statements Republic, and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements amended, has been duly executed by and on behalf of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicableRepublic, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained information in the Registration Statement, the Pricing Disclosure Package or as amended, and the Prospectus, such counsel shall confirm that he as amended or supplemented, stated on the authority of public officials of the Republic has no reason to believe that:been stated in their official capacities thereunto duly authorized;
(1xvii) each part of The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Indenture, insofar as matters of its effective dateColombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Registration Statement, at the respective times each part became effective, contained 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;
(2B) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted No information has come to state any material fact necessary in order such counsel’s attention that causes such counsel to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) believe that the Prospectus, as of its date and as of the date hereofthereof or on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; orand
(4C) any amendment No information has come to the Registration Statement is required to be filed or such counsel’s attention that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, causes such counsel need not express to believe that the documents specified in a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect schedule to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to counsel’s letter, consisting of those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions Package, as of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.Ap
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable TimeTime of Sale, the date hereof Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus Final Prospectus, and any supplement thereto, shall have been filed with in the Commission pursuant to manner and within the time period required by Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof); the final term sheet contemplated by Section 5(A)(a5(b) hereofhereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any part thereof notice by the Commission objecting to its use shall have been issued and no proceeding proceedings for that purpose shall have been initiated instituted or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfactionthreatened.
(b) King & Spalding ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinionsRepresentatives its opinion, dated the Closing DateDate and addressed to the Representatives, to the effect that:
(i) This Agreement the Company has been duly authorizedorganized and is validly subsisting as a corporation under the laws of the Commonwealth of Pennsylvania, executed with full corporate power and delivered by authority under its articles of incorporation to own or lease, as the Companycase may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
(ii) The Indenture has been duly the Securities are in due and validly authorized, executed proper form; the issue and delivered sale of the Securities by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement the terms of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes this Agreement have been duly and validly authorized by all necessary corporate action on the part of the Company and by orders duly entered by the Pennsylvania Public Utility Commission. The Securities have been duly executed and delivered by the duly authorized officers of the Company and, when authenticated and delivered by the Indenture TrusteeTrustee against payment therefor, executed, issued and delivered in the manner provided in the Indenture will constitute legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as their terms subject to enforcement (1) the effect of remedies, to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and conveyance, fraudulent transfer, marshalling or similar laws affecting the creditors’ rights and remedies of creditors generally, generally and the effects of (2) general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(iii) the Indenture has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by duly authorized officers of the Company. The Indenture constitutes a legal, valid and binding instrument, enforceable in accordance with its terms except as the enforceability thereof may be limited by (1) the effect of applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer, marshalling or similar laws affecting creditors’ rights and remedies generally and (2) general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether such enforceability is considered in a proceeding in equity or at law). The Indenture has been duly qualified under the Trust Indenture Act;
(iv) The statements set forth in the Pricing Disclosure Package and Indenture constitutes a valid mortgage lien of record upon all real property presently owned by the Prospectus under the caption “Description of the Notes” insofar Company described therein as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished subject to the Underwriters an opinionlien thereof (other than properties expressly excepted therefrom, dated properties properly released from the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel lien thereof pursuant to the terms thereof and substantially all of the Company’s leaseholds), and the Securities are secured by a valid and, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing extent that it may be perfected by filing under the laws Uniform Commercial Code, a perfected security interest in such of the State personal property of Georgia, and the Company as is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
Indenture, whether such personal property is now owned or hereinafter acquired by the Company (ii) The Company has an authorized capitalization other than properties expressly excepted therefrom; properties released from the security interest created thereby; “proceeds” as set forth defined in the Prospectus, and all Uniform Commercial Code to the extent limited by the terms of Section 9-315 of the issued shares of capital stock Uniform Commercial Code; after-acquired property subject to Section 552 of the Company have been duly Federal Bankruptcy Code; property sold to a buyer in the ordinary course of business, licensed to a licensee in the ordinary course of business or leased to a lessee in the ordinary course of business; insurance policies (except to the extent that payments thereunder are “proceeds,” as defined in the Uniform Commercial Code); and validly authorized and issued and contract rights or general intangibles which by their terms, or by law, are fully paid and non-assessable;
(iii) The Company has been duly qualified not assignable); such counsel need express no opinion as a foreign corporation to any actions that may be required to be taken periodically under the Uniform Commercial Code or other applicable law in order for the transaction validity or perfection of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure security interest to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claimsmaintained;
(v) To this Agreement has been duly authorized, executed and delivered by the Company;
(vi) such counsel is not representing the Company in any pending litigation in which it is a named defendant, or in any litigation that is overtly threatened in writing against it by a potential claimant, that challenges the validity or enforceability of, or seeks to enjoin the performance of, the transactions contemplated by this Agreement, the Indenture and the Securities and, to the knowledge of such counsel’s knowledge and other than as set forth in the Prospectus, there are no material pending legal or governmental proceedings pending to which the Company or any of its subsidiaries subsidiary is a party or of and which are required to be set forth in the documents incorporated by reference in the Registration Statement and Final Prospectus other than those referred to in such documents; and the statements in any property Preliminary Prospectus and the Final Prospectus under the heading “Description of the Company or any of its subsidiaries is Bonds and First and Refunding Mortgage” fairly summarize the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and matters therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesdescribed;
(vii) the PAPUC has entered an appropriate order authorizing the Company to issue and sell the Securities as contemplated herein; such order is in full force and effect and, to the best of such counsel’s knowledge after due inquiry, no proceeding has been initiated upon appeal from or to review the effectiveness of such order. No other consent, approval, authorization, order, registration filing with or qualification order of or with any court or state or federal governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of in connection with the transactions contemplated by in this Agreement, the Indenture or the Securities, except such as have been obtained under the Act Act, the Trust Indenture Act, and from the PAPUC, and such consents, approvals, authorizations, registrations or qualifications as may be required under state the blue sky or securities or Blue Sky laws of any jurisdiction in connection with the purchase and distribution sale of the Notes Securities by the UnderwritersUnderwriters in the manner contemplated in this Agreement and the Final Prospectus and such other approvals (specified in such opinion) as have been obtained;
(viii) The Company is not and, after giving effect to the offering and sale Registration Statement has become effective under the Act; any required filing of the Notes Base Prospectus, any Preliminary Prospectus and the application of the proceeds thereofFinal Prospectus, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicablepursuant 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, made no stop order suspending the effectiveness of the Registration Statement or any notice by the Company prior Commission objecting to its use has been issued, no proceedings for that purpose have been instituted or threatened, and the Time of Delivery Registration Statement (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they as of the date the Registration Statement originally became effective or were filed under the Act, and together with the CommissionPreliminary Prospectus and the final Prospectus, as of each “new effective date” with respect to the Notes pursuant to and within the meaning of Rule 430B(f)(2) under the Act, complied, and the Preliminary Prospectus and the final Prospectus (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion), as of their respective dates, complied, and the final Prospectus (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion), as of the date hereof, complies, in each case may be, complied as to form in all material respects with the applicable requirements of the Act or Act, the Exchange ActAct and the Trust Indenture Act and the respective rules thereunder;
(ix) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus, will not be required to register as an “investment company” under the Investment Company Act of 1940, as applicableamended;
(x) the execution and delivery of this Agreement, the Indenture and the Securities, the consummation of any other transactions contemplated by this Agreement, the Indenture and the Securities, and the rules and regulations fulfillment of the Commission thereunder. In additionterms hereof or thereof do not, although such counsel need not pass upon and the performance of the obligations hereunder and thereunder will not, (1) violate the articles of incorporation and bylaws of the Company; (2) violate any statute, law, rule, regulation, judgment, order or assume decree applicable to the Company or any responsibility of its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its subsidiaries or any of their properties; or (3) conflict with, breach or result in a default under the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of its subsidiaries is a party or bound or to which their property is subject that is listed in the Exhibit Index to the Company’s Form 10-K for the accuracyfiscal year ended December 31, completeness 2014, Forms 10-Q for the fiscal quarters ended March 31, 2015 and June 30, 2015 and Forms 8-K filed with the Commission during the period between January 1, 2015 and the Closing Date or fairness result in the creation or imposition of any security interest in or lien or encumbrance upon, any property or asset of the statements contained Company or any of its subsidiaries pursuant to any item referred to in this clause (3) (other than the Registration Statementlien of the Indenture);
(xi) the discussions in any Preliminary Prospectus and the Final Prospectus in each case under the caption “Certain United States Federal Income Tax Consequences” are fair and accurate summaries of the matters addressed therein, based upon current law and the Pricing Disclosure Package assumptions stated or the Prospectusreferred to therein, and such counsel shall confirm that he these discussions, to the extent they constitute matters of federal income tax law or legal conclusions with respect thereto, represent its opinion; and
(xii) such counsel has no reason to believe that:
that (1) each part of on the Effective Date, the Registration Statement, as of its effective date, Statement contained an any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
, (2) the Pricing Disclosure Package, as of the Applicable TimeTime of Sale, the Disclosure Package contained an any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
misleading or (3) the Prospectus, as of its date and as of on the date hereofClosing Date, contained the Final Prospectus included or contains an includes any untrue statement of a material fact or omitted or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
misleading (4) any amendment to the Registration Statement is required to be filed or that there are any contracts or in each case, other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to than the financial statements and related schedules and other financial information contained therein, and with respect as to clause (i) abovewhich such counsel need express no opinion); In rendering such opinion, such counsel need not express a belief with respect may rely (A) as to matters involving the application of laws of any Form T-1jurisdiction other than the Commonwealth of Pennsylvania or the Federal laws of 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 Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(dc) The Underwriters Representatives shall have received from ▇▇▇▇▇▇▇▇ Winston & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to such the issuance and sale of the Securities, the Indenture, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriters Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. ▇▇▇▇▇▇▇▇ In rendering such opinion, Winston & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trusteerely, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Lawthe laws of the State of Pennsylvania, upon the opinion of King & Spalding LLP and counsel for the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant Company referred to in Section 6(b) and 6(c), respectively.
(ed) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP The Company shall have furnished to you the Representatives a letter certificate of the Company, signed by the Chairman of the Board or lettersthe President and the principal financial or accounting officer of the Company, dated the respective dates of delivery thereof, in form and substance satisfactory to youClosing Date, to the effect set forth in Annex I (a form that the signers of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendment or supplement thereto and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Time of Delivery, is attached Closing Date with the same effect as Annex I(b)).if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(fii) Neither no stop order suspending the Company nor effectiveness of the Registration Statement or any of notice by the Commission objecting to its Significant Subsidiaries shall use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iiii) sustained since the date of the latest audited most recent financial statements included or incorporated by reference in the Pricing Disclosure Package and the Final Prospectus (exclusive of any loss or interference with its business from firesupplement thereto), explosionthere has been no Material Adverse Effect, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than except as set forth in or contemplated in the Pricing ProspectusDisclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives.
(iif) since Subsequent to the respective Execution Time or, if earlier, the dates as of which information is given in the Pricing Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the capital stock letter or long-term debt letters referred to in paragraph (e) of the Company this Section 6 or any of its subsidiaries or (ii) any change, or any development involving a prospective change, in or affecting the general affairsfinancial condition, management, financial position, stockholders’ equity business or results of operations properties of the Company and its subsidiaries, otherwise than taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Pricing Prospectus, Disclosure Package or the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any such case described referred to in clause (i) or (ii)) above, is is, in the sole judgment of the Representatives Representatives, so material and adverse as to make it impracticable impractical or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Underwritten Shares on the Closing Date or the Option Shares on the Additional Closing Date, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company Issuer contained herein as of at the Applicable Execution Time, the date hereof and Closing Date or the Additional Closing Date, as the case may be, to the accuracy of the statements of the Company Issuer made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuer of its obligations hereunder and to the following additional conditions:
(a) The Registration Statement has become effective and no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the Act, no order preventing or suspending the use of any Preliminary Prospectus shall or the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Issuer’s knowledge, contemplated; and the Issuer has complied with each request (if any) from the Commission for additional information. The Prospectus, and any supplement thereto, have been filed with in the Commission pursuant to manner and within the time period required by Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated in the form approved by Section 5(A)(a) hereofyou and attached as Schedule III hereto, and any other material required to be filed by the Company Issuer pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof . The Issuer shall have been issued and no proceeding for that purpose shall have been initiated or threatened by paid the required Commission and no notice of objection of the Commission filing fees relating to the use of Securities within the Registration Statement or any post-effective amendment thereto pursuant time period required by Rule 456(b)(1)(i) without regard to Rule 401(g)(2the proviso therein and otherwise in accordance with Rules 456(b) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction457(r).
(b) King & Spalding LLP, counsel for the Company, The Issuer shall have furnished to the Underwriters an opinion or opinionsrequested and caused ▇▇▇▇, dated the Closing Date▇▇▇▇▇, to the effect that:
(i) This Agreement has been duly authorized▇▇▇▇▇▇▇, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. & ▇▇▇▇▇▇▇▇ LLP, General Counsel of counsel for the CompanyIssuer, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely furnish to the Company or any of Representatives its subsidiariesopinion and disclosure letter, would individually or in dated the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Closing Date or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the CommissionAdditional Closing Date, as the case may be, complied as and addressed to form in all material respects with the requirements of the Act or the Exchange ActRepresentatives, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained substantially in the Registration Statementforms attached hereto as Exhibits C-1 and C-2, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1respectively.
(dc) The Underwriters Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or the Additional Closing Date, as the case may be, and addressed to the Representatives, with respect to such the issuance and sale of the Securities, the Disclosure Package, the Prospectus (as amended or supplemented on the Closing Date or the Additional Closing Date, as the case may be) and other related matters as the Underwriters Representatives may reasonably require, and the Issuer shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Representatives shall have received on the Closing Date or the Additional Closing Date, as the case may be, a certificate, dated the Closing Date or the Additional Closing Date, as the case may be, and signed by an executive officer of the Issuer, on behalf of the Issuer to the effect that (x) each of the signers of such certificate has carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto, and this Agreement, (y) the representations and warranties of the Issuer contained in this Agreement are true and correct on and as of the Closing Date or the Additional Closing Date, as the case may be, and that the Issuer has complied with all of the agreements and satisfied all of the conditions on their part to be performed or satisfied hereunder on or before the Closing Date or the Additional Closing Date, as the case may be, and (z) since the date of the most recent financial statements included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has been no material adverse change, or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise) earnings, business or properties of the Issuer and the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), provided that any executive officer signing and delivering such certificate may rely upon his or her knowledge as to proceedings threatened.
(e) At the Execution Time and at the Closing Date or the Additional Closing Date, as the case may be, (i) Deloitte & Touche LLP shall have furnished to the Representatives, at the request of the Issuer, letters, dated respectively as of the Execution Time and as of the Closing Date or the Additional Closing Date, as the case may be, and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of (A) for the periods on or before December 31, 2021, Apollo Asset Management, Inc. (f/k/a Apollo Global Management, Inc.) and its subsidiaries and (B) for the periods subsequent to December 31, 2021, the Issuer and its subsidiaries contained or incorporated by reference in each of the Registration Statement, the Disclosure Package and the Prospectus; provided that the letter delivered on the Closing Date or the Additional Closing Date, as the case may be, shall use a “cut-off” date no more than three Business Days prior to the Closing Date or the Additional Closing Date, as the case may be, and (ii) PricewaterhouseCoopers LLP shall have furnished to the Representatives, at the request of the Issuer, letters, dated respectively as of the Execution Time and as of the Closing Date or the Additional Closing Date, as the case may be, and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements of Athene Holding Ltd. as of and for the year ended December 31, 2021 contained or incorporated by reference in each of the Registration Statement, the Disclosure Package and the Prospectus; provided that the letter delivered on the Closing Date or the Additional Closing Date, as the case may be, shall use a “cut-off” date no more than three Business Days prior to the Closing Date or the Additional Closing Date, as the case may be.
(f) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment or supplement thereto), the Disclosure Package (exclusive of any amendment or supplement thereto) and the Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6; or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise) earnings, business or properties of the Issuer and the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Securities as contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(g) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Issuer’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) On or before the Closing Date, the Certificate of Designation shall have been filed under applicable Delaware law and become effective and the Issuer shall have delivered evidence of such filing and effectiveness to the Representatives.
(i) On or before the Closing Date, the Issuer shall have filed the requisite listing application with the NYSE for the listing of a number of Underlying Shares equal to the Maximum Number of Underlying Shares on the NYSE (subject to adjustments as described in the Certificate of Designation).
(j) Prior to the Closing Date or the Additional Closing Date, as the case may be, the Issuer shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled 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 reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date or such Additional Closing Date, as the case may be, by the Representatives. Notice of such cancellation shall be given to the Issuer in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the Underwriters, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture TrusteeLLP, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company Closing Date or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such timeAdditional Closing Date, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you case may reasonably requestbe.
Appears in 1 contract
Sources: Underwriting Agreement (Apollo Global Management, Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Shares on the Closing Date as provided herein shall be subject (i) to the accuracy of the condition that all representations and warranties on the part of the Company contained and the Selling Stockholders herein are, at and as of the Applicable Time, the date hereof and the Closing Date, to true and correct, (ii) the accuracy of the statements of condition that the Company made in any certificates pursuant to and the provisions hereof, to the performance by the Company Selling Stockholders shall have performed all of its and their obligations hereunder theretofore to be performed, and to (iii) the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(A)(a5(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other all material required to be filed by the Company pursuant to Rule 433(d) under the Act, Securities Act shall have been filed with the Commission within the applicable time periods period prescribed for such filings filing by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or to the knowledge of the Company threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been receivedCommission; no stop order suspending or preventing the use of the Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or to the knowledge of the Company threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your the Underwriters’ reasonable satisfaction.;
(b) King & Spalding ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the CompanyUnderwriters, shall have furnished to the Underwriters an such written opinion or opinions, dated as of the Closing Date, in form and substance reasonably satisfactory to the effect that:
(i) This Agreement has been duly authorizedUnderwriters, executed and delivered with respect to such matters as may be reasonably requested by the CompanyUnderwriters;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company Underwriters shall have furnished to received the Underwriters an opinionopinions of (i) Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, counsel for the Company, dated as of the Closing Date, the form of ▇▇which is attached as Annex II, and (ii) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Deputy General Counsel — Finance/Securities of the Company, to the effect that:
(i) The Company has been duly incorporated and form of which is validly existing attached hereto as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the ProspectusAnnex III;
(iid) The Company has an authorized capitalization as set forth in the Prospectus, and all respective counsel for each of the issued shares of capital stock Selling Stockholders, as indicated in Schedule B hereto, each shall have furnished to the Underwriters their written opinion with respect to each of the Company have been duly and validly authorized and issued and Selling Stockholders for whom they are fully paid and non-assessable;
acting as counsel (iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws form of each other jurisdiction such opinion is attached as Annex IV-A, Annex IV-B and Annex IV-C hereto), dated the Closing Date, in which it owns or leases properties or conducts any business so as form and substance reasonably satisfactory to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viiie) The Company is not andOn the date hereof, after giving effect Ernst & Young LLP, independent public accountants for the Company, shall have furnished to the offering and sale Underwriters a letter dated as of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior date hereof addressed to the Time of Delivery (other than Underwriters, in form and substance reasonably satisfactory to the Underwriters, with respect to the audited and unaudited financial statements and related schedules and other certain financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or Preliminary Prospectus and the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2f) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated On the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP LLP, independent public accountants for the Company, shall have furnished to you the Underwriters a letter or letters, dated as of the respective dates of delivery thereofClosing Date, in form and substance reasonably satisfactory to youthe Underwriters, to the effect set forth that they reaffirm the statements made in Annex I (a form of the executed copy of the letter furnished by them pursuant to subsection (e) of this Section 8, except that the specified date referred to therein for the carrying out of procedures shall be delivered no more than three business days prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).Closing Date;
(fg) Neither On or after the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fireApplicable Time, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been occurred any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is Material Adverse Change that in the judgment of the Representatives Underwriters is so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes Shares on the terms and in the manner contemplated in the Pricing Disclosure Package or Preliminary Prospectus and the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.;
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” ”, as that term is defined by in Section 3(a)(62) of the Commission for purposes of Rule 436(g)(2) under the Exchange Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch surveillance or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.securities;
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in of the Company’s securities on the New York Stock ExchangeNasdaq Global Select Market; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions financial markets in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives Underwriters is material and adverse and makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes Shares on the terms and in the manner contemplated in by this Agreement, the Pricing Disclosure Package or and the Prospectus.;
(j) The Shares to be sold at the Closing Date shall have been duly listed on the Nasdaq Global Select Market; and
(k) The Company and the Selling Stockholders shall have furnished or caused to be furnished to you the Underwriters at the Time of Delivery Closing Date certificates of officers of the Company and of the Selling Stockholders, respectively, or certificates of the trustees of the Selling Stockholder if the Selling Stockholder is a trust, reasonably satisfactory to you the Underwriters as to the accuracy of the representations and warranties of the Company and the Selling Stockholders, respectively, herein at and as of such timeClosing Date, as to the performance by the Company and the Selling Stockholders, respectively, of all of its their respective obligations hereunder to be performed at or prior to such timeClosing Date, as to such other matters as the Underwriters may reasonably request, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections (a), (g) and (fh) of this Section and as to such other matters as you may reasonably request8.
Appears in 1 contract
Sources: Underwriting Agreement (Td Ameritrade Holding Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Firm Notes and the Option Notes, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein in this Underwriting Agreement as of the Applicable Execution Time, the date hereof Closing Date and the any Option Closing DateDate pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder under this Underwriting Agreement and to the following additional conditions:
(a) The Prospectus closing of the offering of the Offered Shares shall have occurred prior to or simultaneously with the closing of the offering of the Offered Notes.
(b) The Prospectus, and any supplement thereto, shall have been filed with in the Commission pursuant to manner and within the time period required by Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof); [the final term sheet contemplated by Section 5(A)(a5(b) hereof, and hereto and] any other [other] material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or the ADR Registration Statement or any part thereof notice objecting to their use shall have been issued and no proceeding proceedings for that purpose shall have been initiated instituted or threatened threatened, and the Folleto has been filed in the manner and within the time period established by the Commission Spanish Act as developed by secondary legislation and no notice of objection stop order suspending the effectiveness of the Commission Folleto or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(c) KPMG Auditores, S.L. (“KPMG”) has issued by not later than 11:59 p.m. (Madrid time) on the date hereof its special report for the purposes of articles 417 and 511 of the Spanish Capital Companies Act confirming the fairness of the Offered Notes’ conversion ratio and its adjustment provisions and that the [figures] contained in the report of the Board of Directors of the Company on the terms of conversion are, in their view, reasonable.
(d) The Company shall have requested and caused DLA Piper Spain, S.L.U. and DLA Piper LLP (US), counsel for the Company with respect to Spanish and U.S. law, respectively, to have furnished to the use Representatives their opinion or opinions, as the case may be, dated the Closing Date and addressed to the Representatives, to the effect that (subject to assumptions and qualifications reasonably acceptable to the Representatives):
(i) the Registration Statement and the ADR Registration Statement have 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 or the ADR Registration Statement or any post-effective amendment thereto pursuant notice objecting to Rule 401(g)(2) under the Act shall their use has been issued, no proceedings for that purpose have been received; no stop order suspending instituted or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generallythreatened, and the effects of general principles of equity; Registration Statement and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package ADR Registration Statement and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial and statistical information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statementtherein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Trust Indenture Act and the respective rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of that on the Effective Date or the date the Registration Statement, as of its effective date, Statement was last deemed amended the Registration Statement or the ADR Registration Statement contained an any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleadingmisleading or that the Prospectus as of the date thereof and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion);
(2ii) such counsel has no reason to believe that the Pricing Disclosure Package, as of amended or supplemented at the Applicable Execution Time, contained an any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion);
(3iii) the ProspectusDocumento de Registro was approved and registered by the CNMV pursuant to the Spanish Act on July 12, 2012, the Company filed with the CNMV the Relevant Fact Notice on the details of the Offering on [·], the Nota sobre las Acciones was approved and registered by the CNMV pursuant to the Spanish Act on [·]; to the knowledge of such counsel, no stop order suspending the effectiveness of the Folleto has been issued, no proceedings for that purpose have been instituted or threatened and the Folleto (other than the financial statements and other financial and statistical information contained therein, as of its date and to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Spanish Act and the rules thereunder; and such counsel has no reason to believe that on the Effective Date or the date hereof, the Folleto was last deemed amended the Spanish Documents contained or contains an any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Folleto as of the date thereof and on the Closing Date included or include any untrue statement of a material fact or omitted or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
misleading (4) any amendment to the Registration Statement is required to be filed or that there are any contracts or in each case, other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to than the financial statements and related schedules and other financial and statistical information contained therein, and with respect as to clause (i) above, which such counsel need not express a belief with respect to any Form T-1.no opinion);
(div) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for each of the Underwriters, such opinion Company and the Specified Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or opinions, dated the Closing Dateorganized, with respect full corporate power and authority to such matters own or lease, as the Underwriters case may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely be, and to operate its properties and conduct its business as described in the Disclosure Package, the Prospectus and the Folleto, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification except where the failure to be so qualified or in good standing would not have a Material Adverse Effect;
(iv) as to those matters that relate to the Indenture Trusteebest of our knowledge, upon the certificate Company is not the subject of any bankruptcy or certificates insolvency proceeding of such entities any nature and no steps have been taken for its liquidation, dissolution, declaration of insolvency (ii“concurso”) or analogous circumstance under the laws of Spain and no liquidator, administrator, receiver or analogous person has been appointed over all or any of the assets of the Company;
(vi) each of the Lock-Up Agreement Signatories (as hereinafter defined) that is a corporate entity has been duly incorporated and is validly existing as a [corporation] in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to matters governed by Georgia Lawenter into the Lock-Up Agreement, upon and each of the opinion Lock-Up Agreement Signatories that is an individual has due authority to enter into the Lock-Up Agreement;
(vii) all the outstanding shares of King & Spalding LLP capital stock of each Specified Subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Disclosure Package and the opinion Prospectus, all outstanding shares of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) capital stock of each such Specified Subsidiary are owned by the Company either directly or through wholly owned subsidiaries free and 6(c), respectively.
(e) At the Applicable Time and at the Time clear of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to youany perfected security interest or, to the effect knowledge of such counsel, after due inquiry, any other security interest, claim, lien or encumbrance;
(viii) the Company’s authorized share capital is as set forth in Annex I (a form the Disclosure Package, the Prospectus and the Spanish Documents; the capital stock of the executed copy Company conforms in all material respects to the description thereof contained in the Disclosure Package, the Prospectus and the Spanish Documents; the outstanding Class A Shares and Class B Shares have been duly and validly authorized and issued and are fully paid and nonassessable; the Underlying Shares issuable or deliverable upon conversion of the letter Offered Notes have been duly and validly authorized and, when issued and/or delivered upon conversion of the Offered Notes and, if any of the Underlying Shares are new Class B Shares, when the capital increase relating to such new Class B Shares has been duly registered with the Mercantile Registry and such new Class B Shares have been duly registered with Iberclear, the Underlying Shares will be delivered prior validly issued, fully paid and nonassessable; the Underlying Shares will conform in all material respects to the execution of this Agreement is attached as Annex I(a) and a form description of the executed letter to be delivered on the effective date of any post-effective amendment to Class B Shares contained in the Registration Statement, the ADR Registration Statement, the Disclosure Package, the Prospectus and as the Spanish Documents; the Board of Directors of the Time Company has duly and validly adopted resolutions reserving the maximum number of DeliveryUnderlying Shares for issuance upon conversion of the Offered Notes, is attached authorizing the application for listing of such Underlying Shares on the Madrid and Barcelona Stock Exchanges and authorizing the application for listing of the related ADSs on the Nasdaq Global Select Market; the holders of outstanding shares of capital stock of the Company and of bonds convertible into Class A Shares or Class B Shares of the Company are not entitled to preemptive or other rights to subscribe for the Offered Notes or the Underlying Shares other than those as Annex I(b)).have been duly excluded in accordance with Spanish law; except as set forth in the Disclosure Package, the Prospectus and the Spanish Documents, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding and there are no commitments by the Company to create, issue, sell or otherwise dispose of, shares of capital stock of or ownership interests in the Company; there are no restrictions on the free transferability of the Underlying Shares set out in the constitutional documents of the Company or under Spanish law or regulation; there are no restrictions on subsequent transfers of the Underlying Shares; and, the Offered Notes have been approved for listing on the Nasdaq Global Select Market subject to official notice for issuance;
(fix) Neither the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company nor any in accordance with its terms (subject, as to enforcement of its Significant Subsidiaries shall have (iremedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law) sustained since and the date Offered Notes will be convertible into Class B Shares or ADSs, as applicable, in accordance with the terms of the latest audited financial Indenture; and the Offered Notes have been duly and validly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Underwriting Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture; and the statements included or incorporated by reference set forth under the headings “Description of the Notes,” “Description of American Depositary Shares” and “Description of Share Capital” in the Pricing Prospectus Disclosure Package and the Final Prospectus, insofar as such statements purport to summarize certain provisions of the Offered Notes, the Indenture, the Class B Shares and the ADSs, provide a fair summary of such provisions;
(x) the Company’s obligations under the Offered Notes (other than to pay interest, including optionally outstanding payments as described in the Disclosure Package and the Prospectus) constitute direct, unsecured and subordinated obligations of the Company and the Offered Notes will rank at all times pari passu without any loss preference or interference priority among themselves and will (subject to such exceptions as are from time to time mandatory under Spanish law) rank (a) senior in priority only to the rights and claims against the Company of the holders of “junior securities;” (b) pari passu with its business from firethe rights and claims against the Company of the holders of any “parity securities;” and (c) junior to the rights and claims against the Company of the Company’s “senior creditors,” each as defined under the caption “Description of the Notes—Ranking” in the Disclosure Package and the Prospectus. However, explosionthe Company’s obligations under the Offered Notes to pay interest, flood including “optionally outstanding payments” (as defined in the Disclosure Package and the Prospectus), will be the Company’s unsecured, unsubordinated obligations and rank pari passu with all the Company’s other unsecured, unsubordinated obligations;
(xi) insofar as matters of Spanish law, United States Federal law and New York State law are concerned, to the knowledge of such counsel, there is no pending or other calamitythreatened action, whether suit or not covered proceeding by insurance, or from before any labor dispute or court or governmental actionagency, order authority or decree, otherwise than as set forth body or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of arbitrator involving the Company or any of its subsidiaries or any changeits or their property of a character required to be disclosed in the Registration Statement, the ADR Registration Statement or the Spanish Documents which is not adequately disclosed in the Disclosure Package, the Prospectus and the Spanish Documents, and there is no franchise, contract or other document of a character required to be described in the Registration Statement, the ADR Registration Statement, the Disclosure Package, the Prospectus or the Spanish Documents, or any development involving a prospective changeto be filed as an exhibit thereto, which is not described or filed as required; the descriptions contained in the Prospectus under the heading “Taxation,” insofar as such statements summarize the legal conclusions applicable to the offering of the Offered Notes and the Underlying Shares, constitute fair and accurate summaries of such legal matters; and the statements in the Prospectus under the headings “Business—Intellectual Property,” “Business—Information Technology,” “Business—Legal Proceedings,” “Regulation,” “Description of Share Capital,” “Description of American Depositary Shares,” “Description of the Notes” and “Description of the Share Lending Agreements” in the Documento de Registro (as of its date) in Sections 2, 5.2, 6, 8, 10, 11, 19, 20, 21 and 22, and in the Nota sobre las Acciones (as of its date) in Sections 3, 4, 5, 6, 7.3, 10, 11.1 and 11.3, insofar as such statements summarize legal matters, agreements, documents or affecting proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings;
(xii) this Underwriting Agreement has been duly authorized, executed and delivered by the general affairsCompany;
(xiii) the Stock Loan Agreements have been duly authorized, management, financial position, stockholders’ equity or results of operations of executed and delivered by the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined obligations assumed thereunder by the Commission for purposes of Rule 436(g)(2) under the ActCompany are legal, valid, binding and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any enforceable obligations of the Company’s debt securities or preferred stock.;
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (ivxiv) the outbreak or escalation of hostilities involving the United States or the declaration Lock-Up Agreements have been duly authorized, executed and delivered by the United States of a national emergency or war or Lock-Up Agreement Signatories;
(vxv) the occurrence of any other calamity or crisis or any change in financialCompany is not and, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.after gi
Appears in 1 contract
Sources: Underwriting Agreement (Abengoa Sa)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Applicable Execution Time, as of the date hereof of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date, to the accuracy in all material respects of the statements of the Company made in any certificates delivered by the Company pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, or any supplement thereto, shall have been filed in the manner and within the time period required under Rule 424(b), and any Issuer Free Writing Prospectus shall have been filed with in the Commission pursuant to Rule 424(b) under the Act manner and within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement Statement, or any part thereof notice that would prevent its use, as amended from time to time, shall have been issued and no proceeding proceedings for that purpose shall have been initiated instituted or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfactionthreatened.
(b) King & Spalding LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters Representatives:
(i) the opinion of the General Counsel, an opinionAssociate General Counsel or a Deputy General Counsel of the Company, or an outside counsel for the Company, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, substantially to the effect that:
(iA) The the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amendedDelaware, with full corporate power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization Disclosure Package and Final Prospectus as set forth in the Prospectusamended or supplemented, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require except where such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate not have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(viB) The execution insofar as the statements contained in the Disclosure Package, the statements contained in the Final Prospectus under the caption “Description of the Global Notes” and delivery the statements contained in the Base Prospectus under the caption “Description of the Debt Securities” purport to describe specific provisions of the Securities or the Indenture, such statements present in all material respects an accurate summary of such provisions;
(C) the Indenture has been duly authorized, executed and delivered by the Company, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding obligation enforceable against the Company in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law); and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of this Agreement, the issuance will be legal, valid and sale binding obligations of the NotesCompany enforceable against the Company in accordance with their terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, arrangement, moratorium and other similar laws relating to or affecting the rights and remedies of creditors generally from time to time in effect, and subject to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law);
(D) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Base Prospectus, any Issuer Free Writing Prospectus, any Preliminary Prospectus or the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) or Rule 433 has been made in the manner and within the time period required by Rule 424(b) or Rule 433, as the case may be; to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, or any notice that would prevent its use has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Act;
(E) this Agreement has been duly authorized, executed and delivered by the Company;
(F) no authorization, approval or other action by, and no notice to, consent of, order of, or filing with, any U.S. federal or California or Delaware governmental authority or agency is required for the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreementherein, except such as have been obtained under the Act, the Exchange Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Notes by the Underwriters;Securities and such other approvals (specified in such opinion) as have been obtained; and
(viiiG) The Company is not and, after giving effect to none of the offering issue and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration StatementSecurities, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence consummation of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering transactions herein contemplated or the delivery fulfillment of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.hereof will conflict with,
Appears in 1 contract
Sources: Underwriting Agreement (Hp Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Republic made in any certificates pursuant to the provisions hereof, to the performance by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; and the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfactionthis Agreement.
(b) King & Spalding LLP, counsel for The Head or Acting Head of the Company, Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Underwriters an opinion or opinionsRepresentatives such counsel’s written opinion, dated the Closing Date, to the effect that:
(i) This Agreement The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly Republic and validly authorizedthe Agreements constitute legal, executed and delivered by the Company and constitutes a valid and binding agreement obligations of the Company, Republic enforceable in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iiiiv) The issuance, execution and delivery of the Notes Securities have been duly and validly authorized by the Company and, when authenticated by the Indenture Trusteeauthorized, executed, issued and delivered by the Republic in accordance with the manner provided in Fiscal Agency Agreement, and, assuming due authentication and delivery by the Indenture will Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and Republic enforceable against the Company in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries Securities) of the matters set forth therein Republic that will rank equal in right of payment with all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel other present and future unsecured and unsubordinated External Indebtedness of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersRepublic;
(vi) The There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of this Agreementany of the Agreements, the issuance and sale issue of the Notes, and the consummation of the transactions and performance of the obligations Securities as contemplated herein and therein contemplated will not conflict with in the Prospectus, or result in a breach the performance or violation observance by the Republic of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Agreements or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesSecurities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the issuance due execution, delivery and sale performance by the Republic of any of the Notes Agreements or the consummation by Securities, (B) the Company validity or enforceability against the Republic of any of the transactions contemplated by this AgreementAgreements or the Securities, or (C) the issue, sale or delivery of the Securities, except such as have been obtained under for (I) Law 533 of November 11, 1999, (II) the Act surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Decree No. 2681 of December 29, 1993, (VI) Article 100 of Decree 111 of January 15, 1996 and such consents(VII) Resolution No. 2254 dated September 14, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution 2005 of the Notes by the UnderwritersMinisterio de Hacienda y Crédito Público;
(viii) The Company To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not andnecessary that any Agreement or the Securities be registered, after giving effect recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 2254 dated September 14, 2005, issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) a summary of the Agreements in the Diario Unico de Contratación Pública of the Republic, to satisfy the requirement for such publications, (B) notice to the offering Banco de la República concerning the liability management transaction and sale (C) in accordance with External Resolution No. 8 of November 19, 2004, issued by the Junta Directiva del Banco de la República, the delivery of written information from the Director General of Public Credit of the Notes and Ministerio de Hacienda y Crédito Público to the application Junta Directiva del Banco de la República regarding the proposed liability management transaction, each of which shall be effected on or prior to the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amendedClosing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that, the Securities are held by a non-resident and non-domiciliary of the Republic.
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process; provided, that, except as provided under Article 177 of the Código Contencioso Administrativo of the Republic, which does not override Articles 684 or 513 of the Código de Procedimiento Civil and Article 19 of Decree 111 of January 15, 1996 of the Republic, the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 15 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 15 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 15 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 14 hereof, Section 18 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 15 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur”, subject to the provisions of Article 693 of the Código de Procedimiento Civil which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic and subject to compliance with the provisions of Article 694 of the Código de Procedimiento Civil. The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus and any further amendments and supplements theretoProspectus, as applicableamended or supplemented, made and their filing with the Commission have been duly authorized by and on behalf of the Company prior to the Time of Delivery (other than the financial statements Republic, and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements amended, has been duly executed by and on behalf of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicableRepublic, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained information in the Registration Statement, the Pricing Disclosure Package or as amended, and the Prospectus, such counsel shall confirm that he as amended or supplemented, stated on the authority of public officials of the Republic has no reason to believe that:been stated in their official capacities thereunto duly authorized;
(1xvii) each part of The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of its effective dateColombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Registration Statement, at the respective times each part became effective, contained 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;; and
(2B) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted No information has come to state any material fact necessary in order such counsel’s attention that causes such counsel to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) believe that the Prospectus, as of its date and as of the date hereofthereof or on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Prospectus (4) any amendment except to the Registration Statement extent expressly set forth in (xvii) above) and that such counsel makes no representation that such counsel has independently verified the accuracy, completeness and fairness of such statements (except as aforesaid), and that such counsel’s opinions referred to in this subsection (b) are limited to matters of Colombian law and, insofar as the opinion required by this subsection (b) is affected by matters of United States or New York law, it may be given in reliance upon the opinion required to be filed or that there are any contracts or other documents by subsection (c) of a character required to be filed this Section 6 and that, insofar as an exhibit the foregoing opinions relate to the Registration Statement legality, validity, binding effect or required to be incorporated by reference into enforceability of any agreement or obligation of the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) aboveRepublic, such counsel need not express a belief with respect has assumed that each party to such agreement or obligation other than the Republic has satisfied those legal requirements that are applicable to it to the financial statements and related schedules and other financial information contained therein, and with respect extent necessary to clause (i) above, make such counsel need not express a belief with respect to any Form T-1agreement or obligation enforceable against it.
(dc) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, United States counsel for to the UnderwritersRepublic, such opinion or opinionsshall have furnished to the Representatives their written opinion, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.that:
(i) On or after Assuming that the Applicable Time there shall not Securities have occurred any been duly authorized, executed, authenticated, issued and delivered against payment therefor, the Securities constitute valid, binding and enforceable obligations of the following: Republic, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, to general principles of equity (iwhether enforcement is considered in a proceeding in equity or at law) a suspension and to possible judicial action giving effect to governmental actions or material limitation in trading in securities generally on the New York Stock Exchange; foreign laws affecting creditors’ rights;
(ii) a suspension or material limitation in trading in Assuming that the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration Fiscal Agency Agreement has been duly authorized, executed and delivered by the United States of parties thereto, the Fiscal Agency Agreement constitutes a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financialvalid, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment binding and enforceable agreement of the Representatives makes it impracticable or inadvisable Republic, subject to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.applicable
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters Underwriters, as to purchase Shares to be purchased at the Notes Time of Delivery, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and at and as of the Closing DateTime of Delivery, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof5(a)(i); the final term sheet contemplated by Section 5(A)(a) hereof5(a)(i), and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.;
(b) King Shearman & Spalding LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Sterling LLP, counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated the Closing DateTime of Delivery, in form and substance satisfactory to you, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP , and such counsel shall have received such papers and information as they may rely reasonably request to enable them to pass upon such matters;
(ic) The Company’s General Counsel or such other internal counsel as to those matters that relate shall be reasonably acceptable to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP Underwriters shall have furnished to you a letter or letterssuch counsel’s written opinion to the effect set forth in Exhibit A, dated the respective dates Time of delivery thereofDelivery, in form and substance satisfactory to you;
(d) ▇▇▇▇▇▇▇ LLP, Maryland counsel for the Company, shall have furnished to you their written opinion to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration StatementExhibit B, and as of dated the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, form and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees substance satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.you;
Appears in 1 contract
Sources: Underwriting Agreement (Huntington Bancshares Inc/Md)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company UK Issuer and the Parent contained herein as of the Applicable Time, the date hereof Execution Time and the Closing Date and the Option Closing Date, as the case may be, to the accuracy of the statements of the Company UK Issuer and the Parent made in any certificates pursuant to the provisions hereof, to the performance by the Company UK Issuer and the Parent of its their respective obligations hereunder and to the following additional conditions:
(a) The Canadian Final Supplement shall have been filed with the Qualifying Authorities pursuant to the Canadian Shelf Procedures within the applicable time period prescribed for such filing thereunder and the U.S. Final Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act and General Instruction II.L. of Form F-10, as applicable, within the applicable time period prescribed for such filing by the rules and regulations under the Act and and, in each case, in accordance with Section 5(A)(a5(a) hereof; the final term sheet contemplated by Section 5(A)(a5(c) hereofhereto, and any other material required to be filed by the Company UK Issuer or the Parent pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the UK Issuer or the Parent, threatened by the Commission and Commission; no notice order having the effect of objection of the Commission to preventing or suspending the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or prospectus (including any Issuer Free Writing Prospectus Prospectus) relating to the Securities shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the UK Issuer or the Parent, threatened by the Commissionany Qualifying Authorities; and all requests for additional information on the part of any Qualifying Authority and the Commission shall have been complied with to your the Representatives’ reasonable satisfaction.;
(b) King & Spalding The UK Issuer and the Parent shall have requested and caused Torys LLP, Canadian and United States counsel for the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, UK Issuer and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuanceParent, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ counsel for the UK Issuer and the Parent, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special Investment Company Act counsel for the UK Issuer and the Parent, to have furnished to the Representatives their opinions, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the UK Issuer or the Parent and public officials.
(c) The Representatives shall have received from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, United States counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to such the issuance and sale of the Securities, the Indenture, the Registration Statement, the Disclosure Package, the U.S. Final Prospectus (together with any supplement thereto) and other related matters as the Underwriters Representatives may reasonably require. , and the UK Issuer and the Parent shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters (it being understood that, to the extent such opinion relates to the laws of Ontario and the federal laws of Canada applicable therein, such counsel shall be entitled to rely on the opinion of Canadian counsel to the UK Issuer and the Parent delivered pursuant to Section 6(b) hereof).
(d) The Parent shall have furnished to the Representatives a certificate of the Parent, signed by the Chairman of the Board or the Chief Executive Officer and the principal financial or accounting officer of the Parent, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package, the Canadian Final Prospectus and the U.S. Final Prospectus and any supplements or amendments thereto, as well as each electronic road show (if any) used in connection with the offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the UK Issuer and the Parent in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date and the UK Issuer and the Parent have complied with all the agreements and satisfied all the conditions on their respective parts to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the UK Issuer’s or the Parent’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package, the Canadian Final Prospectus and the U.S. Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Parent and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Canadian Final Prospectus and the U.S. Final Prospectus (exclusive of any supplement thereto).
(e) The Parent shall have requested and caused Deloitte LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, concerning the financial information with respect to the Parent set forth in the Disclosure Package, the U.S. Final Prospectus and the Canadian Final Prospectus.
(f) In the event that the Underwriters exercise the option provided in Section 2(b) hereof to purchase all or any portion of the Optional Notes on any Option Closing Date that is after the Closing Date, the obligations of the Underwriters to purchase the applicable Optional Notes shall be subject to the satisfaction of the conditions specified in paragraphs (a), (g) and (h) of this Section 6 and to the further condition that, at the applicable Option Closing Date, the Underwriters shall have received:
(i) A certificate, dated such Option Closing Date, to the effect set forth in, and signed by the Chairman of the Board or the Chief Executive Officer and the principal financial or accounting officer of the Parent, as specified in Section 6(d) hereof, except that the references in such certificate to the Closing Date shall be changed to refer to such Option Closing Date.
(ii) The opinions of Torys LLP, Canadian and United States counsel for the UK Issuer and the Parent, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ counsel for the UK Issuer and the Parent, and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP may rely (i) as LLP, special Investment Company Act counsel for the UK Issuer, in form and substance satisfactory to those matters that relate counsel for the Underwriters, dated such Option Closing Date, relating to the Indenture Trustee, upon Optional Notes to be purchased on such Option Closing Date and otherwise to the certificate or certificates of such entities and same effect as the opinions required by Section 6(b) hereof.
(iiiii) as to matters governed by Georgia Law, upon the The opinion of King & Spalding LLP and the opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ ▇. ▇▇& ▇▇▇▇ delivered pursuant LLP, United States counsel for the Underwriters, dated such Option Closing Date, relating to the Optional Notes to be purchased on such Option Closing Date and otherwise to the same effect as the opinion required by Section 6(b6(c) and 6(c), respectivelyhereof.
(eiv) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a A letter or letters, dated the respective dates of delivery thereoffrom Deloitte LLP, in form and substance satisfactory to youthe Underwriters and dated such Option Closing Date, substantially in the same form and substance as the letter furnished to the effect set forth Underwriters pursuant to Section 6(e) hereof, except that the “specified date” in Annex I (a form of the executed copy of the letter furnished pursuant to this paragraph shall be delivered a date not more than two business days prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b))such Option Closing Date.
(fg) Neither Subsequent to the Company nor any of its Significant Subsidiaries shall have (i) sustained since Execution Time or, if earlier, the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Registration Statement (exclusive of any amendment thereto) the Canadian Final Prospectus and the U.S. Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the capital stock letter or long-term debt letters referred to in paragraph (e) of the Company or any of its subsidiaries or this Section 6; (ii) any change, or any development involving a prospective change, in or affecting the general affairscondition (financial or otherwise), managementprospects, financial positionearnings, stockholders’ equity business or results of operations properties of the Company Parent and its subsidiariessubsidiaries taken as a whole, otherwise than whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Pricing ProspectusDisclosure Package, the Canadian Final Prospectus and the U.S. Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any such case described referred to in clause (i) or (ii)) above, is is, in the sole judgment of the Representatives Representatives, so material and adverse as to make it impracticable impractical or inadvisable to proceed with the public offering or the delivery of the Notes on Securities as contemplated by the terms Registration Statement (exclusive of any amendment thereto), the Disclosure Package, the Canadian Final Prospectus and in the manner contemplated in the Pricing Disclosure Package U.S. Final Prospectus (exclusive of any amendment or the Prospectus.
supplement thereto); or (giii) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred any decrease in the rating accorded of any of the CompanyUK Issuer’s or the Parent’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that term is defined by does not indicate the Commission for purposes direction of Rule 436(g)(2the possible change.
(h) under Prior to the ActClosing Date, the UK Issuer and (ii) no such organization the Parent shall have publicly announced that it has under surveillancefurnished to the Representatives such further information, outlook, watch or review, with possible negative implications, its rating of certificates and documents as the Representatives may reasonably request. If any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there conditions specified in this Section 6 shall not have occurred been fulfilled when and as provided in this Agreement, or if any of the following: (i) a suspension opinions and certificates mentioned above or material limitation elsewhere in trading this Agreement shall not be reasonably satisfactory in securities generally on form and substance to the New York Stock Exchange; (ii) a suspension Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or material limitation in trading in at any time prior to, the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States Closing Date or the declaration Option Closing Date, as the case may be, by the United States Representatives. Notice of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company cancellation shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as given to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance Parent in writing or by the Company of all of its respective obligations hereunder to be performed at telephone or prior to such time, as to the matters set forth facsimile confirmed in subsections (a) and (f) of this Section and as to such other matters as you may reasonably requestwriting.
Appears in 1 contract
Sources: Underwriting Agreement (Brookfield Asset Management Inc.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Canadian Final Supplement shall have been filed with the Qualifying Authorities pursuant to the Canadian Shelf Procedures within the applicable time period prescribed for such filing thereunder and the U.S. Final Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act General Instruction II.L. of Form F-10 within the applicable time period prescribed for such filing by the rules and regulations under the Act and and, in each case, in accordance with Section 5(A)(a5(a) hereof; the April 2025 Marketing Materials required to be filed by the Company with the Qualifying Authorities shall have been filed within the applicable time period prescribed for such filings under Canadian Securities Law and the final term sheet contemplated by Section 5(A)(a5(c) hereofhereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or or, to the knowledge of the Company, threatened by the Commission and Commission; no notice order having the effect of objection of the Commission to preventing or suspending the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or prospectus (including any Issuer Free Writing Prospectus Prospectus) relating to the Notes shall have been issued and no proceeding for that purpose shall have been initiated or or, to the knowledge of the Company, threatened by the Commissionany Qualifying Authorities; and all requests for additional information on the part of any Qualifying Authority and the Commission shall have been complied with to your the Representatives’ reasonable satisfaction.
(b) King & Spalding The Company shall have requested and caused Torys LLP, Canadian and United States counsel for the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇▇ ▇. LLP, British Columbia counsel for the Company, ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, special Investment Company Act counsel for the Company and local counsel in each province of Canada other than British Columbia, Ontario, Québec and Alberta (to the extent that Notes will be sold to the public in such other provinces), to have furnished to the Representatives their opinions, dated the Closing Date and addressed to the Representatives, in form and substance reasonably satisfactory to the Representatives. In rendering such opinion, such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials.
(c) The Representatives shall have received from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, United States counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to such the issuance and sale of the Notes, the Indenture, the Registration Statement, the Disclosure Package, the U.S. Final Prospectus (together with any supplement thereto) and other related matters as the Underwriters Representatives may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely , and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters (i) as to those matters that relate it being understood that, to the Indenture Trusteeextent such opinion relates to the laws of British Columbia and the federal laws of Canada applicable therein, upon the certificate or certificates of such entities and (ii) as counsel shall be entitled to matters governed by Georgia Law, upon rely on the opinion of King & Spalding LLP and Canadian counsel to the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Company delivered pursuant to Section 6(b) and 6(chereof), respectively.
(ed) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP The Representatives shall have furnished to you a letter or lettersreceived an appropriate legal opinion, dated the respective dates of delivery thereofClosing Date, in form and substance satisfactory to youthe Representatives acting reasonably, addressed to the Representatives and their counsel, of Torys LLP, as to compliance with the Applicable Securities Laws of Québec relating to the use of the French language in connection with the documents, including the Canadian Preliminary Prospectus, the Canadian Final Prospectus and any amendment or supplement thereto and the Notes to be delivered to purchasers in the Province of Québec.
(e) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer and the principal financial or accounting officer of the Company, dated the Closing Date, to the effect set forth in Annex I (a form that the signers of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to such certificate have carefully examined the Registration Statement, the Disclosure Package, the Canadian Final Prospectus and the U.S. Final Prospectus and any supplements or amendments thereto, as well as each electronic road show (if any) used in connection with the offering of the Notes, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct (subject to materiality or other qualifications expressly set forth in such representations and warranties) on and as of the Time Closing Date with the same effect as if made on the Closing Date, except for representations and warranties that by their express terms are made as of Deliverya specific date, is attached and the Company has complied with all the agreements and satisfied all the conditions to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Disclosure Package, the Canadian Final Prospectus and the U.S. Final Prospectus (exclusive of any supplement thereto), there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as Annex I(b)a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Canadian Final Prospectus and the U.S. Final Prospectus (exclusive of any supplement thereto).
(f) Neither The Company shall have requested and caused Deloitte LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, concerning the Financial Information set forth in the Disclosure Package, the U.S. Final Prospectus and the Canadian Final Prospectus.
(g) The Company shall have requested and caused Ernst & Young LLP to have furnished to the Representatives, at the Execution Time and at the Closing Date, letters, (which may refer to letters previously delivered to one or more of the Representatives), dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives, concerning the Oaktree Financial Information set forth in the Disclosure Package, the U.S. Final Prospectus and the Canadian Final Prospectus.
(h) At the Execution Time and at the Closing Date, the Company nor any of its Significant Subsidiaries shall have furnished to the Representatives a certificate addressed to the Underwriters, dated respectively as of the Execution Time and as of the Closing Date, of the Chief Financial Officer of the Company, with respect to certain financial data contained in the Disclosure Package, the U.S. Final Prospectus and the Canadian Final Prospectus, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Representatives.
(i) sustained since Subsequent to the date of Execution Time or, if earlier, the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Registration Statement (exclusive of any amendment thereto), the Canadian Final Prospectus and the U.S. Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i)(a) any change or decrease specified in the capital stock letter or long-term debt letters referred to in paragraph (f) and (g) of the Company this Section 6, or any of its subsidiaries or (b) any change, or any development involving a prospective change, in or affecting the general affairscondition (financial or otherwise), managementprospects, financial positionearnings, stockholders’ equity business or results of operations properties of the Company and its subsidiariessubsidiaries taken as a whole, otherwise than whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Pricing ProspectusDisclosure Package, the Canadian Final Prospectus and the U.S. Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any such case described referred to in clause (ia) or (ii)b) above, is is, in the sole judgment of the Representatives Representatives, so material and adverse as to make it impracticable impractical or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner as contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes Registration Statement (exclusive of Rule 436(g)(2) under any amendment thereto), the ActDisclosure Package, the Canadian Final Prospectus and the U.S. Final Prospectus (exclusive of any amendment or supplement thereto); or (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its any decrease in the rating of any of the Company’s debt securities or preferred stock.
by any “nationally recognized statistical rating organization” (ias defined in Section 3(a)(62) On or after the Applicable Time there shall not have occurred any of the following: (iExchange Act) a suspension or material limitation any notice given of any intended or potential decrease in trading in securities generally on the New York Stock Exchange; (ii) a suspension any such rating or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any possible change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in rating that does not indicate the judgment direction of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectuspossible change.
(j) The Prior to the Closing Date, the Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of Representatives such further information, certificates and documents as the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you Representatives may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled 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 reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Sources: Underwriting Agreement (Brookfield Asset Management Ltd.)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters of any Designated Securities under the Pricing Agreement relating to purchase the Notes such Designated Securities shall be subject subject, in the discretion of the Representatives, to the accuracy of the condition that all representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and the Closing Date, to the accuracy of the other statements of the Company made in any certificates pursuant or incorporated by reference in the Pricing Agreement relating to such Designated Securities are, at and as of the provisions hereofTime of Delivery for such Designated Securities, to true and correct, the performance by condition that the Company shall have performed all of its obligations hereunder theretofore to be performed and to the following additional conditions:
(a) The Prospectus as amended or supplemented in relation to such Designated Securities shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a5(a) hereof; if the final term sheet contemplated Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become effective by Section 5(A)(a) hereof10:00 P.M., and any other Washington, D.C. time, on the date of this Agreement; all material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods period prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your the Representatives’ reasonable satisfaction.
(b) King ▇▇▇▇▇▇▇ ▇▇▇▇ & Spalding ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, shall have furnished to the Representatives such written opinion or opinions, dated the Time of Delivery for such Designated Securities, with respect to the matters as the Representatives may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters.
(c) ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with you its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an written opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel as of the CompanyTime of Delivery for such Designated Securities, in form and substance reasonably satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amendedDelaware, with corporate power and authority to own its properties and conduct its business as described in the ProspectusProspectus as amended or supplemented;
(ii) The Company Each of this Agreement and the Pricing Agreement has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly authorized, executed and validly authorized and issued and are fully paid and non-assessabledelivered by the Company;
(iii) The Company has Designated Securities have been duly qualified authorized, executed, issued and delivered by the Company, constitute valid and legally binding obligations of the Company, are entitled to the benefits provided by the Indenture and are enforceable in accordance with their terms, subject, as a foreign corporation for the transaction of business to enforcement, to bankruptcy, insolvency, reorganization, moratorium and is in good standing under the other laws of each other jurisdiction general applicability relating to or affecting creditors’ rights and to general equity principles (regardless of whether such enforceability is considered in which it owns a proceeding of equity or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdictionlaw);
(iv) SunTrust Bank The Indenture has been duly incorporated authorized, executed and is validly existing as delivered by the Company and constitutes a corporation in good standing under the laws valid and legally binding obligation of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium and clear other laws of all liens, encumbrances, equities general applicability relating to or claimsaffecting creditors’ rights and to general equity principles (regardless of whether such enforceability is considered in a proceeding of equity or in law); and the Indenture has been duly qualified under the Trust Indenture Act;
(v) To such counsel’s knowledge and other than as The statements set forth in the Prospectus, there are no legal or governmental proceedings pending to which Pricing Disclosure Package and the Company or any of its subsidiaries is a party or of which any property Prospectus under the captions (A) “Description of the Company or any of its subsidiaries is the subject which is reasonably likely Notes”, insofar as they purport to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have constitute a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations summary of the Company terms of the Debt Securities and its subsidiaries(B) “Certain Tax Consequences”, taken insofar as a whole; andthey purport to describe the provisions of the laws and documents referred to therein, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersaccurate and complete in all material respects;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” ”, as such term is defined in the Investment Company Act of 1940, as amendedAct;
(ixvii) The Registration Statement, Statement and the Prospectus as amended or supplemented and any further amendments and supplements thereto, as applicable, thereto made by the Company prior to the Time of Delivery for such Designated Securities (other than the financial statements and related schedules and other financial information data contained therein, incorporated by reference therein and any or omitted therefrom, the Statement of Eligibility on Form T-1 Statements and assessments of Eligibility and Qualification filed as exhibits to or reports on the Registration Statementeffectiveness of internal control over financial reporting contained therein, incorporated by reference therein or omitted therefrom, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and;
(xviii) The documents incorporated by reference in the Prospectus as amended or any further amendment or supplement thereto made by the Company prior to the Time of Delivery supplemented (other than the financial statements and related schedules and other financial information data contained therein, incorporated by reference therein or omitted therefrom, the Statement of Eligibility on Form T-1 and assessments of or reports on the effectiveness of internal control over financial reporting contained therein, incorporated by reference therein or omitted therefrom, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder;
(ix) The Registration Statement is effective under the Act and, to the best of such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act or proceedings therefore initiated or threatened by the Commission; and
(x) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issue of the Designated Securities or the consummation by the Company of the transactions contemplated by this Agreement or the Pricing Agreement, except such as have been obtained under the Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Designated Securities by the Underwriters. In addition, Such counsel shall also state that although such counsel need it does not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the ProspectusProspectus as amended or supplemented, such counsel shall confirm except for those referred to in the opinion in subsection (v) of this Section 8(c), no facts have come to its attention that he has no reason have caused it to believe that:
that (1) each part of the Registration Statement, as of its effective date, the Registration Statement or any further amendment thereto made by the Company or Parent prior to the Time of Delivery (other than the financial statements and related schedules and other financial and related statistic data included therein or omitted therefrom, as to which such counsel need express no belief), when such part or amendment become effective, contained 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;
, (2) the Pricing Disclosure PackagePackage (other than the financial statements and related schedules and other financial and related statistic data included therein or omitted therefrom, as to which such counsel need express no belief) as of the Applicable Time, Time contained an untrue statement of a material fact or omitted to state any a material fact necessary to make the statements therein, in order the light of the circumstances under which they were made, not misleading or (3) as of its date and as of such Time of Delivery for such Designated Securities, the Prospectus or any further amendment or supplement thereto made by the Company prior to such Time of Delivery for such Designated Securities (other than the financial statements and related schedules and other financial and related statistic data included therein or omitted therefrom, as to which such counsel need express no belief) contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. In rendering any such opinion, such counsel may rely, as to matters of fact, to the extent such counsel deems proper, on certificates of responsible officers of the Company and of public officials. Such opinions shall be limited to the federal laws of the United States, the laws of New York State and the General Corporation Law of the State of Delaware. The parties acknowledge that, in rendering such opinions, such counsel is not rendering any opinion with respect to the insurance laws or regulations or any securities laws other than U.S. federal securities law.
(d) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Executive Vice President, General Counsel and Secretary of Parent shall have furnished to you a written opinion, dated as of such Time of Delivery, in form and substance reasonably satisfactory to you, to the effect that:
(i) The Company and each of its subsidiaries, where necessary, are duly licensed to conduct insurance or reinsurance business, as the case may be, under the insurance statutes of each jurisdiction in which the conduct of its business requires such licensing, except for such jurisdictions in which the failure of the Company or any of its subsidiaries to be so licensed would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company; the Company and the Company’s subsidiaries have made all required filings under applicable insurance holding company statutes in each jurisdiction where such filings are required, except for such jurisdictions in which the failure to make such filings would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company. The Company and the Company’s subsidiaries have all other necessary authorizations, approvals, orders, consents, certificates, permits, registrations and qualifications of and from all insurance regulatory authorities necessary to conduct their respective businesses as described in the Pricing Prospectus and the Prospectus, except where the failure to have such authorizations, approvals, orders, consents, certificates, permits, registrations or qualifications would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company, and none of the Company or any of its subsidiaries has received any notification from any insurance regulatory authority to the effect that any additional authorization, approval, order, consent, certificate, permit, registration or qualification is needed to be obtained by any of them, in any case where it could be reasonably expected that (x) the Company and the Company’s subsidiaries would be required either to obtain such additional authorization, approval, order, consent, certificate, permit, registration or qualification or to cease or otherwise limit the writing of certain business and (y) the failure to obtain such additional authorization, approval, order, consent, certificate, permit, registration or qualification or the limiting of the writing of such business would have a Material Adverse Effect on the Company; and no insurance regulatory authority having jurisdiction over the Company or any of its subsidiaries has issued any order or decree impairing, restricting or prohibiting the payment of dividends by or to any of them;
(3ii) Other than as set forth in the ProspectusRegistration Statement, the Pricing Disclosure Package and the Prospectus as of its date and as amended or supplemented, there are no legal or governmental proceedings pending to which any of the date hereofCompany, contained the Company’s subsidiaries, Parent and Parent’s subsidiaries is a party or contains an untrue statement of a material fact which any property of any of them is the subject which, individually or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light aggregate, might reasonably be expected to have a Material Adverse Effect on Parent or a Material Adverse Effect on the Company; and, to the best of the circumstances under which they were madesuch counsel’s knowledge, not misleading; orno such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(4iii) Such counsel does not know of any amendment to the Registration Statement is required to be filed contract or that there are any contracts or other documents document of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus as amended or supplemented or required to be described in the Registration Statement or the Prospectus as amended or supplemented which are is not filed or so filed, incorporated by reference or described as required; ;
(iv) The issue and sale of the Designated Securities and the compliance by the Company with all of the provisions of this Agreement, the Pricing Agreement, the Designated Securities and the Indenture, and the consummation of the transactions herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, (A) any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which any of the Company, the Company’s subsidiaries, Parent and Parent’s subsidiaries are a party or by which any of them are bound or to which any of them or their properties are subject, or any statute or any rule, regulation or order known to such counsel of any court or governmental agency or body having jurisdiction over any of them or any of their properties (except thatfor such conflicts, with respect to clauses (1breaches, violations or defaults which do not or would not, individually or in the aggregate have a Material Adverse Effect on Parent or a Material Adverse Effect on the Company), or (2)B) any provision of the certificate of incorporation, (3) and (4) abovebylaws, such counsel need not express a belief with respect to memorandum of association or other organizational documents of the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to Company or Parent or any Form T-1.of their subsidiaries;
(dv) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPNo consent, counsel approval, authorization or order of, or registration, qualification or filing with, any court or governmental agency or body having jurisdiction over the Company or any subsidiary of the Company or any of their respective properties is required for the Underwritersissue and sale of the Designated Securities or the consummation by the Company of the transactions contemplated by this Agreement or the Pricing Agreement under state or foreign insurance laws, except such opinion or opinions, dated as have been obtained under the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP Act and the opinion Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.the Designated Securities by the Underwriters; and
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(fvi) Neither the Company nor any subsidiary of its Significant Subsidiaries shall have the Company is (i) sustained since the date in violation of the latest audited financial statements included its respective charter or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood bylaws or other calamity, whether organizational documents or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since to the respective dates as knowledge of which information is given such counsel, in default in the Pricing Prospectus there shall not have been performance or observance of any change material obligation, agreement, covenant or condition contained in the capital stock any indenture, mortgage, deed of trust, loan agreement, lease or long-term debt of the Company other material agreement or instrument to which it is a party or by which it or any of its subsidiaries properties may be bound or any changeaffected, or any development involving a prospective changeexcept, in or affecting the general affairs, management, financial position, stockholders’ equity or results case of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is for such as, individually or in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes aggregate, would not have a Material Adverse Effect on the terms and in the manner contemplated in the Pricing Disclosure Package or the ProspectusCompany.
(gvii) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the ActIn rendering such opinion, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such timecounsel may rely, as to the performance by the Company matters of all of its respective obligations hereunder to be performed at or prior to such timefact, as to the matters set forth in subsections (a) and (f) of this Section and as to extent such other matters as you may reasonably request.counsel deems proper, on cer
Appears in 1 contract
Sources: Underwriting Agreement (Everest Reinsurance Holdings Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Shares at each Closing Date shall be subject subject, in the discretion of the Representatives, to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and the as of such Closing Date, to the accuracy of the statements of the Company officers on and as of such Closing Date made in any certificates given pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereof; all filings (including, without limitation, the final term sheet contemplated Final Term Sheet) required by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) 433 under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for made, and no such filings by Rule 433shall have been made without the consent of the Representatives; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your the Representatives’ reasonable satisfaction.
(b) King & Spalding LLP, counsel for the Company, The Representatives shall have be furnished to the Underwriters an opinion or with opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the such Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President and General Counsel of the Company, to substantially in the effect that:
(i) The Company has been duly incorporated and is validly existing form included as a corporation in good standing under the laws of the State of GeorgiaExhibit A, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956▇▇▇▇▇ Day, as amendedChicago, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the ProspectusIllinois, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation counsel for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;substantially in the form included as Exhibit B.
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vic) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York, New York, counsel for the Underwriters, such opinion or opinions, opinions dated the such Closing Date, Date with respect to such matters as the Underwriters Representatives may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely , and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the President or any Vice President of the Company, dated such Closing Date, as to the matters set forth in paragraphs (a) and (i) as to those matters that relate of this Section 7 and to the Indenture Trustee, upon further effect that the certificate or certificates signers of such entities certificate have carefully examined the Registration Statement, the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of such Closing Date with the same effect as if made on such Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;
(ii) there has been no material adverse change in the condition of the Company and its subsidiaries taken as to matters governed a whole, financial or otherwise, or in the earnings, affairs or business prospects of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, from that set forth or contemplated by Georgia Lawthe Registration Statement or Prospectus; and
(iii) (A) the Prospectus, upon the opinion as of King & Spalding LLP its date and as of such Closing Date, and the opinion Pricing Disclosure Package, as of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant the Applicable Time, did not and do not include any untrue statement of a material fact and did not omit to Section 6(bstate a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading and (B) and 6(c)since the date of the Prospectus no event has occurred which should have been set forth, respectivelyin light of the circumstances, in a supplement or amendment to the Prospectus.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP The Representatives shall have furnished to you a letter or lettersreceived letters from Deloitte & Touche LLP, independent public accountants for the Company (dated the respective dates date of delivery thereofthis Agreement and each Closing Date, respectively, and in form and substance satisfactory to youthe Representatives) advising that (i) they are an independent registered public accounting firm with respect to the Company as required by the Act and published rules and regulations of the Commission thereunder, (ii) in their opinion, the consolidated financial statements and supplemental schedules included or incorporated by reference in the Registration Statement or Prospectus and covered by their opinion filed with the Commission under Section 13 of the Exchange Act comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the published rules and regulations of the Commission thereunder, (iii) that they have performed limited procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company, a reading of the minutes of meetings of the Board of Directors, committees thereof, and of the shareholder of the Company since the date of the most recent audited financial statements included or incorporated by reference in the Prospectus, inquiries of officials of the Company responsible for financial accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such limited review and procedures nothing came to their attention that caused them to believe that: (A) any material modifications should be made to any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement or Prospectus for them to be in conformity with generally accepted accounting principles or any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement or Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the rules and regulations of the Commission applicable to Form 10-Q; and (B) with respect to the period subsequent to the date of the most recent financial statements included or incorporated by reference in the Prospectus and except as set forth in or contemplated by the Registration Statement or Prospectus, there were any changes, at a specified date not more than three business days prior to the date of the letter, in the capital stock of the Company, increases in long-term debt or decreases in stockholder’s equity or net current assets of the Company and its consolidated subsidiaries as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated in the Prospectus, or for the period from the date of the most recent financial statements included or incorporated by reference in the Prospectus to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in operating revenues, operating income or net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; and (iv) they have carried out specified procedures performed for the purpose of comparing certain specified financial information and percentages (which is limited to financial information derived from general accounting records of the Company or, to the effect set forth extent not so derived, from schedules prepared by Company officers responsible for such accounting records) included or incorporated by reference in Annex I (a form the Registration Statement and Prospectus with indicated amounts in the financial statements or accounting records of the executed copy Company and (excluding any questions of legal interpretation) have found such information and percentages to be in agreement with the relevant accounting and financial information of the Company referred to in such letter in the description of the procedures performed by them.
(f) Subsequent to be delivered prior the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 7 which makes it impractical or inadvisable in the judgment of the Representatives to proceed with the public offering or the delivery of the Shares on the terms and in the manner contemplated by the Prospectus.
(g) Subsequent to the execution and delivery of this Agreement Agreement, (i) no downgrading shall have occurred in the rating accorded any debt securities or preferred stock of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as such term is attached as Annex I(adefined by the Commission for purposes of Rule 436(g)(2) under the Act and a form (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the executed letter to be delivered on the effective date Shares or of any post-effective amendment to other debt securities or preferred stock of or guaranteed by the Registration Statement, and as Company (other than an announcement with positive implications of the Time of Delivery, is attached as Annex I(b)a possible upgrading).
(fh) Subsequent to the execution and delivery of this Agreement, no event or condition of a type described in Section 1(l) shall have occurred or shall exist, which event or condition is not described in the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the terms and in the manner contemplated by this Agreement and the Prospectus.
(i) Neither the Company nor any of its Significant Subsidiaries subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or court or governmental action, order or decreedecree of any court, arbitrator or governmental or regulatory authority, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as date of which information is given this Agreement, neither the Company nor any of its subsidiaries shall have incurred any liabilities or obligations, direct or contingent, or entered into any transactions, not in the Pricing Prospectus ordinary course of business, which are material to the Company and its subsidiaries, and there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, business, financial position, stockholders’ equity or stockholder’s equity, results of operations or prospects of the Company and its subsidiaries, subsidiaries otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), ) is in the judgment of the Representatives Underwriters so material and adverse as to make it impracticable or inadvisable to proceed with the public offering offering, sale or the delivery of the Notes Shares on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of by this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, Agreement and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The No Representative shall have advised the Company that the Registration Statement or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which in the opinion of counsel for the Underwriters is material or omits to state a fact which in the opinion of counsel for the Underwriters is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(k) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Shares; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Shares.
(l) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement and the transactions contemplated hereby shall be reasonably satisfactory to counsel to the Underwriters, and prior to the Closing Date, the Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations Representatives such further information, certificates and warranties of the Company herein at and documents as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you they may reasonably request.
(m) The Shares to be delivered at such Closing Date shall have been duly approved for listing on the New York and Chicago Stock Exchanges and the Pacific Exchange, subject to official notice of issuance. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be satisfactory in form and substance to the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the First Closing Date and with respect to the Option Shares, the Second Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing, or by telephone or telegraph confirmed in writing.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Republic made in any certificates pursuant to the provisions hereof, to the performance by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereofof this Agreement; the and any final term sheet contemplated by Section 5(A)(a4(a) hereof, and any other material required to be filed by the Company Republic pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for The Head or Acting Head of the Company, Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Underwriters an opinion or opinionsRepresentatives such counsel’s written opinion, dated the Closing Date, to the effect that:
(i) This Agreement The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly Republic and validly authorizedthe Agreements constitute legal, executed and delivered by the Company and constitutes a valid and binding agreement obligations of the Company, Republic enforceable in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iiiiv) The issuance, execution and delivery of the Notes Securities have been duly and validly authorized by the Company and, when authenticated by the Indenture Trusteeauthorized, executed, issued and delivered by the Republic in accordance with the manner provided in Indenture, and, assuming due authentication and delivery by the Indenture will Trustee, the Securities constitute legal, valid and binding obligations of the Company, Republic enforceable in accordance with their terms entitled to the benefits of provided by the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equityIndenture;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries Securities) of the matters set forth therein Republic that will rank without any preference among themselves and equal in right of payment with all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel other present and future unsecured and unsubordinated External Indebtedness of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersRepublic;
(vi) The There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of this Agreementany of the Agreements, the issuance and sale issue of the Notes, and the consummation of the transactions and performance of the obligations Securities as contemplated herein and therein contemplated will not conflict with in the Prospectus, or result in a breach the performance or violation observance by the Republic of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Agreements or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesSecurities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the issuance due execution, delivery and sale performance by the Republic of any of the Notes Agreements or the consummation by Securities, (B) the Company validity or enforceability against the Republic of any of the transactions contemplated by this AgreementAgreements or the Securities, or (C) the issue, sale or delivery of the Securities, except such as have been obtained under for, (I) the Act and such consentsrelevant portions of Law 80 of October 28, approvals1993, authorizations(II) the surviving portions of Law 185 of January 27, registrations 1995 which were not repealed or qualifications as may be required under state securities or Blue Sky laws amended by Law 533 of November 11, 1999 (III) Law 533 of November 11, 1999, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Law 1624 of April 29, 2013, (VII) Law 1771 of December 30, 2015, (VIII) Law 2073 of December 31, 2020, (IX) Law 2382 of July 16, 2024, (X) Decree No. 1068 of May 26, 2015, (XI) CONPES Document No. 4134 Departamento Nacional de Planeación, Ministerio de Hacienda y Crédito Público, dated July 13, 2024; (XII) evidence of publication of this Agreement in connection with the purchase and distribution Sistema Electrónico de Contratación Pública SECOP of the Notes Republic, (XIII) Authorization by Act of the UnderwritersComisión Interparlamentaria de Crédito Público adopted in its meeting held on October 9, 2024 and (XIV) Resolution No. 3275 dated October 28, 2024 of the Ministerio de Hacienda y Crédito Público (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) The Company To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not andnecessary that any Agreement or the Securities be registered, after giving effect recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General or Acting Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of Resolution No. 3275 dated October 28, 2024 issued by Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic, (B) filing of information before the Colombian Central Bank (Banco de la República) of public external indebtedness report on the relevant “International Indebtedness Granted to Residents Form” (Informe de Crédito Externo Otorgado a Residentes – Extracto de Credito Externo), resulting from the issuance of the Securities under the Indenture and (C) the publication of this Agreement in the Sistema Electrónico de Contratación Pública-SECOP of the Republic, to satisfy the requirement for such publications, each of which shall be effected on or prior to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amendedClosing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, subject to the terms, conditions, limitations or exceptions under (i) Articles 192, 195, 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo) as amended by Articles 80, 81 and 87 of Law 2080 of 2021; and (ii) Articles 593, 594 and 595 et al of Law 1564 of 2012 (Código General del Proceso); and Article 19 of Decree 111 of January 15, 1996, pursuant to which the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Indenture and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Indenture and the Securities as provided in Section 15 hereof, Section 9.7(a) of the Indenture and Section 16(a) of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur,” subject to the provisions of (i) Article 605 (et al) of Law 1564 of 2012 (Código General del Proceso), which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic; and (ii) subject to compliance with the provisions of Articles 606 and 607 of Law 1564 of 2012 (Código General del Proceso). The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic other than those governing judicial procedures, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly legalized copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus and any further amendments and supplements theretoProspectus, as applicableamended or supplemented, made and their filing with the Commission have been duly authorized by and on behalf of the Company prior to the Time of Delivery (other than the financial statements Republic, and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements amended, has been duly executed by and on behalf of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicableRepublic, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained information in the Registration Statement, the Pricing Disclosure Package or as amended, and the Prospectus, such counsel shall confirm that he as amended or supplemented, stated on the authority of public officials of the Republic has no reason to believe that:been stated in their official capacities thereunto duly authorized;
(1xvii) each part of The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Indenture, insofar as matters of its effective dateColombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Registration Statement, at the respective times each part became effective, contained 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;
(2B) No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof or on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Pricing Disclosure Package, as of the Applicable Time, contained an any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) . Such counsel may state that he or she is not passing upon and does not assume any responsibility for the Prospectusaccuracy, as of its date and as completeness or fairness of the date hereof, statements contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
Prospectus (4) any amendment except to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect extent expressly set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(axvii) above) and a form that such counsel makes no representation that such counsel has independently verified the accuracy, completeness and fairness of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statementsuch statements (except as aforesaid), and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any that such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Companycounsel’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations Representative ▇▇▇▇▇▇ enters into this Bond Purchase Agreement in reliance upon the representations and warranties of the Underwriters City contained herein and the representations and warranties to purchase be contained in the Notes documents and instruments to be delivered at the Closing and upon the performance by the City of its obligations both on and as of the date hereof and as of the Closing Date. Accordingly, the Underwriters’ obligations under this Bond Purchase Agreement to purchase, to accept delivery of and to pay for the Bonds shall be subject to the accuracy of the representations and warranties on the part of the Company City contained herein as of the Applicable Time, the date hereof and as of the Closing Date, to the accuracy in all material respects of the statements of the Company officers and other officials of the City made in any certificates certificate or other document furnished pursuant to the provisions hereof, to the performance by the Company City of its obligations to be performed hereunder and to under the following additional conditions:Legal 119579.5 034559 AGMT
(a) The Prospectus City shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereofdeliver, and any other material required or cause to be filed by delivered, the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission Bonds to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfactionRepresentative, as provided in this Bond Purchase Agreement.
(b) King & Spalding LLPAt the Closing, counsel for the Company, Legal Documents shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has respective parties thereto, and the Official Statement shall have been duly and validly authorized, executed and delivered by the Company City, all in substantially the forms submitted to the Representative, with only such changes as shall have been agreed to in writing by the Representative, and constitutes a valid shall be in full force and binding agreement effect; and there shall be in full force and effect such resolution or resolutions of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery City Council of the Notes have been duly and validly authorized by the Company andCity as, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, opinion of ▇▇▇▇▇▇▇ ▇. , ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP (“Bond Counsel”), General Counsel shall be necessary or appropriate in connection with the transactions contemplated hereby;
(c) Between the date hereof and the Closing Date, the market price or marketability of the CompanyBonds, at the initial offering prices set forth in the Official Statement, or the Underwriters’ ability to process and settle transactions, shall not have been materially adversely affected, in the reasonable judgment of the Representative (evidenced by a written notice from the Representative to the City terminating the obligation of the Underwriters to accept delivery of and make any payment for the Bonds), by reason of any of the following:
(1) legislation enacted (or resolution passed) by or introduced or pending legislation amended in the Congress or recommended for passage by the President of the United States, the Speaker of the House of Representatives, the President Pro Tempore of the Senate, the Chairman or ranking minority member of the Committee of Ways and Means of the House of Representatives or the Chairman or ranking minority member of the Committee on Finance of the Senate, or a decision rendered by a court established under Article III of the Constitution of the United States or by the Tax Court of the United States, or an order, ruling, regulation (final, temporary or proposed) or press release issued or made by or on behalf of the Treasury Department of the United States or the Internal Revenue Service, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon moneys that would be received by the City or the Special Tax that would be received by the Trustee under the Indenture;
(2) the declaration of war or engagement in or escalation of major military hostilities by the United States or the occurrences or escalation of any other national or international emergency, calamity, or crisis affecting the operation of the government of or the financial community or credit markets in the United States;
(3) the declaration of a general banking moratorium by federal, New York or California authorities, the general suspension of trading on any national securities exchange, or a major financial crisis or a material disruption in commercial banking in securities settlement or clearance services shall have occurred;
(4) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental authority, of any material restrictions not now 119579.5 034559 AGMT
(5) legislation enacted (or resolution passed) by or introduced or pending legislation amended in the Congress or recommended for passage by the President of the United States, or an order, decree or injunction issued by any court of competent jurisdiction, or an order, ruling, regulation (final, temporary or proposed) or press release issued or made by or on behalf of the Securities and Exchange Commission, or any other governmental agency having jurisdiction of the subject matter, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing that obligations of the general character of the Bonds, or the Bonds, including any or all underlying arrangements, are not exempt from registration under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Securities Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation1933, as amended, or By-laws that the Indenture is not exempt from qualification under the Trust Indenture Act of 1939, as amended, or that the execution, offering or sale of obligations of the Company general character of the Bonds, or of the organizational documents Bonds, including any or all underlying arrangements, as contemplated hereby or by the Official Statement, otherwise is or would be in violation of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesfederal securities laws as amended and then in effect;
(vii6) No consentthe withdrawal or downgrading of any rating assigned to the Bonds by Standard & Poor’s Ratings Services, approvala division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, authorizationInc. (“S&P”), order▇▇▇▇▇’▇ Investors Service, registration Inc. (“▇▇▇▇▇’▇”), or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the UnderwritersFitch Ratings (“Fitch”);
(viii7) The Company there is not and, after giving effect a withdrawal or downgrading of any rating on any of the City’s obligations substantially similar to the offering and sale Bonds; or
(8) any event occurring, or information becoming known that, in the judgment of the Notes and the application of the proceeds thereofRepresentative, will not be an “investment company,” as such term is defined makes untrue in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial material respect any statement or information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Official Statement, or has the Pricing Disclosure Package or effect that the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an Official Statement contains any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters At or prior to the Closing Date, the Representative shall have received from the following instruments and documents, in each case satisfactory in form and substance to the Representative and its counsel:
(1) Copies of the Legal Documents (excluding the Bonds) each duly executed and delivered by the respective parties thereto;
(2) The approving opinion of Bond Counsel, dated the Closing Date and addressed to the City, in substantially the form attached to the Official Statement as Appendix F, and a letter of Bond Counsel, dated the Closing Date and addressed to the Representative, to the effect that such opinion may be relied upon by the Representative to the same extent as if such opinion were addressed to the Representative;
(3) The supplemental opinion or opinions of Bond Counsel, dated the Closing Date and addressed to the Representative, in a form acceptable to the Representative,
(4) The opinion of ▇▇▇▇▇ ▇▇▇▇, A Professional Law Corporation, San Francisco, California, as disclosure counsel, dated the Closing Date and addressed to the City and the Representative, to the effect that, based upon the information made available to it in the course of its participation in the preparation of the Official Statement and without passing on and without assuming any responsibility for the accuracy, completeness and fairness of the statements in the Official Statement, and having made no independent investigation or verification thereof, it is of the opinion, subject to the limitations expressed, that as of the Closing Date it has no reason to believe that the Official Statement as of its date and as of the Closing Date (except for any financial, engineering, numerical and statistical data or forecasts, estimates, projections, assumptions or expressions of opinion, the information relating to DTC and its book- entry system contained in the Official Statement, as to all of which such firm expresses no opinion) contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(5) The opinion of the City Attorney, as counsel for the City, dated the Closing Date and addressed to the Representative, to the effect that:
(i) the District is a convention center facilities district duly organized and validly existing under the Chapter and the Act; 119579.5 034559 AGMT
(ii) the City is a charter city duly organized and existing under its charter and the laws of the State of California and has full legal right, power and authority to form the District;
(iii) the City Resolutions (as defined in Section 3(d)(12) below) were duly adopted at meetings of the City Council of the City that were called and held pursuant to law and with all public notice required by law and at which a quorum was present and acting throughout;
(iv) except as otherwise disclosed in the Official Statement, there is no action, suit, proceeding or investigation at law or in equity before or by any court, public board or body, that has been served on the City and that is now pending or, to the best knowledge of such counsel after reasonable investigation, threatened against the City, to restrain or enjoin the Project, the collection or application of the Special Tax, or contesting or affecting the enforceability of the Legal Documents or the Bond Purchase Agreement;
(v) the execution and delivery of the Legal Documents, the Bond Purchase Agreement and the Official Statement, the adoption of the City Resolutions, and compliance by the City with the provisions of the foregoing, under the circumstances contemplated thereby, do not and will not in any material respect conflict with or constitute on the part of the City a breach or default under (a) any agreement or other instrument to which the City is a party (and of which such counsel is aware after reasonable investigation) or by which it is bound (and of which such counsel is aware after reasonable investigation), which conflict, breach or default would have a materially adverse effect on the transactions contemplated hereby and by the Official Statement or on the City’s liabilities and obligations under the Legal Documents, (b) any existing law or regulation to which the City is subject, which conflict, breach or default would have a materially adverse effect on the transactions contemplated hereby and by the Official Statement or on the City’s liabilities and obligations under the Legal Documents, or (c) any court order or consent decree to which the City is subject (and of which such counsel is aware after reasonable investigation), which conflict, breach or default would have a materially adverse effect on the transactions contemplated hereby and by the Official Statement or on the City’s liabilities and obligations under the Legal Documents;
(vi) the Official Statement has been duly authorized, executed and delivered by the City, and the Legal Documents and the Bond Purchase Agreement have been duly authorized, executed and delivered by the City and, assuming due authorization, execution and delivery by the other parties thereto, constitute legal, valid and binding agreements of the City enforceable in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization, arrangement, fraudulent 119579.5 034559 AGMT
(vii) except as described in the Official Statement, no authorization, approval, consent, or other order of the State of California or any other governmental authority or agency within the State of California having jurisdiction over the City is required for the valid authorization, execution, delivery and performance by the City of the Legal Documents or the Bond Purchase Agreement or the adoption of the City Resolutions or for the authorization, execution and delivery of the Official Statement, that has not been obtained; and
(viii) as of its date and as of the Closing Date, the information contained in the Preliminary Official Statement and the Official Statement under the caption “LEGAL MATTERS – Absence of Material Litigation” does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(6) The opinion of Counsel to the Trustee, dated the Closing Date and addressed to the Representative and the City, to the effect that (i) the Trustee has been duly incorporated as a national banking association under the laws of the United States and is in good standing under the laws of the State of California, duly qualified to do business and to exercise trust powers therein, having full power and authority to enter into and to perform its duties as Trustee under the Indenture; (ii) the Trustee has duly authorized, executed and delivered the Indenture; (iii) the Indenture constitutes a legally valid and binding agreement of the Trustee, enforceable against the Trustee in accordance with its terms; (iv) the Bonds have been validly authenticated and delivered by the Trustee; (v) no authorization, approval, consent, or other order of the State of California or any other governmental authority or agency within the State of California having jurisdiction over the Trustee is required for the valid authorization, execution, delivery and performance by the Trustee of the Indenture; and (vi) the execution and delivery of the Indenture and compliance by the Trustee with the respective provisions of the foregoing, under the circumstances contemplated thereby, do not and will not in any material respect conflict with or constitute on the part of the Trustee a breach or default under any agreement or other instrument to which the Trustee is a party (and of which such counsel is aware after reasonable investigation) or by which it is bound (and of which such counsel is aware after reasonable investigation) or any existing law, regulation, court order or consent decree to which the Trustee is subject.
(7) The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters (“Underwriters’ Counsel”), such opinion dated the Closing Date and addressed to the Representative, to the effect that (a) the Bonds are exempt from registration under the 119579.5 034559 AGMT
(8) A certificate or opinionscertificates, dated the Closing Date, with respect to such matters as signed by a duly authorized official of the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate City satisfactory to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereofRepresentative, in form and substance satisfactory to youthe Representative, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior that, to the execution best of this Agreement is attached as Annex I(asuch official’s knowledge, (a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at City contained in the Bond Purchase Agreement are true and correct when made and true and correct in all material respects on and as of such timethe Closing Date with the same effect as if made on the Closing Date; (b) except as otherwise disclosed in the Official Statement, as there is no litigation that has been served on the City and that is now pending or, to the performance best knowledge of such official, threatened (i) to restrain or enjoin the Project, the execution, sale or delivery of any of the Bonds or the collection or application of the Special Tax, (ii) in any way contesting or affecting the validity of the Bonds, the Bond Purchase Agreement, or the Legal Documents, or (iii) in any way contesting the existence or powers of the City; and (c) no event has occurred since the date of the Official Statement that either makes untrue or incorrect in any material respect as of the Closing Date any statement or information contained in the Official Statement or is not reflected in the Official Statement but should be reflected therein in order to make the statements and information therein not misleading;
(9) A certificate, dated the date of Closing, signed by a duly authorized officer of the Company of all of its respective obligations hereunder to be performed at or prior to such timeTrustee, as satisfactory in form and substance to the matters set forth in subsections Representative, to the effect that:
(ai) the Trustee is a national banking association organized and (f) existing under and by virtue of this Section the laws of the United States, having the full power and as being qualified to such other matters as you may reasonably request.accept the trusts, and enter into and perform its duties, under the Indenture and to execute and deliver the Bonds to the Representative and the Ind
Appears in 1 contract
Sources: Bond Purchase Agreement
Conditions to the Obligations of the Underwriters. The obligations of the several Underwriters to purchase the Notes under this Agreement shall be subject to the accuracy of the representations and warranties on the part of the Company contained and the Selling Shareholders herein set forth as of the Applicable Time, the date hereof and the as of each Closing Date, to the accuracy of the statements of the Company Company's officers, the Selling Shareholders and the Attorneys-In-Fact on behalf of the Selling Shareholders made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Shareholders of its their respective obligations hereunder hereunder, and to the following additional conditions, unless waived in writing by the Representatives:
(a) The Prospectus Registration Statement shall have been filed with declared effective by the Commission not later than 5:30 p.m., Washington, D. C. time, on the date of this Agreement, or such later time as shall have been consented to by the Representatives, which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433timely made; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding by the Commission or any state securities commission nor, to the knowledge of the Company, shall any proceedings for that purpose shall have been initiated or threatened by the Commission threatened; and no notice of objection any request of the Commission to the use or any state securities commission for inclusion of additional information in the Registration Statement Statement, or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission otherwise, shall have been complied with to your reasonable satisfactionthe satisfaction of the Representatives.
(b) King & Spalding LLP, counsel for Since the Company, shall have furnished to dates as of which information is given in the Underwriters an opinion or opinions, dated the Closing Date, to the effect thatRegistration Statement:
(i) This Agreement has been duly authorizedthere shall not have occurred any change or development involving, executed and delivered by or which could be expected to involve, a Material Adverse Effect, whether or not arising from transactions in the Company;ordinary course of business; and
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes shall not have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from any labor dispute, strike, fire, explosionflood, flood windstorm, accident or other calamity, calamity (whether or not covered by insurance, insured) or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of whichwhich on the Company, in any such case described in clause (i) or (ii)) above, is in the judgment opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes Shares on the terms and in the manner contemplated in the Pricing Disclosure Package or Registration Statement and the Prospectus.
(gc) The Representatives shall not have advised the Company shall have complied with that the provisions Registration Statement or the Prospectus contains an untrue statement of fact that, in the opinion of the first sentence Representatives or counsel for the Underwriters, is material, or omits to state a fact that, in the opinion of Section 5(A)(d) hereof with respect the Representatives or such counsel, is material and is required to be stated therein or necessary to make the furnishing of prospectuses on the business day next succeeding the date of this Agreementstatements therein not misleading.
(hd) On or after the Applicable Time (i) no downgrading The Representatives shall have occurred in received an opinion of Holland & Knight LLP, counsel for the rating accorded Company addressed to the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” Representatives, as that term is defined by the Commission for purposes representatives of Rule 436(g)(2) under the ActUnderwriters, and (ii) no such organization shall have publicly announced that it has under surveillancedated the First Closing Date or the Second Closing Date, outlookas the case may be, watch or review, with possible negative implications, its rating of any of to the Company’s debt securities or preferred stock.effect that:
(i) On The Company has been duly incorporated and is validly existing as a corporation and whose status is active under the laws of its jurisdiction of incorporation, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; the Company is duly registered and qualified to do business as a foreign corporation under the laws of, and is in good standing as such in, each jurisdiction in which such registration or after qualification is required, except where the Applicable Time there shall failure to so register or qualify would not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; Material Adverse Effect;
(ii) a suspension or material limitation in trading The authorized capital stock of the Company consists of 100,000,000 shares of Common Stock, par value $.01 per share, and 15,000,000 shares of Preferred Stock, par value $.01 per share, and all such stock conforms as to legal matters to the descriptions thereof in the Company’s securities on Prospectus and the New York Stock Exchange; Registration Statement;
(iii) a general moratorium on commercial banking activities declared The issued and outstanding shares of capital stock of the Company immediately prior to the issuance and sale of the Shares to be sold by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services the Company hereunder have been duly authorized and validly issued, are fully paid and nonassessable, and there are no preemptive, preferential or, to such counsel's knowledge, except as described in the United States; Prospectus, other rights to subscribe for or purchase any shares of capital stock of the Company, and, to such counsel's knowledge, no shares of capital stock of the Company have been issued in violation of such rights;
(iv) Except for the outbreak or escalation of hostilities involving Subsidiaries and the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers inactive subsidiaries of the Company listed on Schedule IV attached hereto, the Company has no subsidiaries, and trustees satisfactory the Company does not own any equity interest in or control, directly or indirectly, any other corporation, limited liability company, partnership, joint venture, association, trust or other business organization except as described in the Prospectus and the Registration Statement; each Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, with full corporate power and authority to you own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; each Subsidiary is duly registered or qualified to do business as a foreign corporation under the accuracy laws of, and is in good standing as such in, each jurisdiction in which such registration or qualification is required, except where the failure to so register or qualify would not have a Material Adverse Effect; the issued and outstanding shares of the representations capital stock of each Subsidiary have been duly authorized and warranties of the Company herein at validly issued, are fully paid and as of such timenonassessable and there are no preemptive, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior preferential or, to such timecounsel's knowledge, as other rights to the matters set forth in subsections (a) and (f) subscribe for or purchase any shares of this Section and as capital stock of any Subsidiary and, to such other matters as you may reasonably request.counsel's knowledge, no shares of capital stock of any Subsidiary have been
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Firm Securities and Optional Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Timedate hereof, the date hereof Applicable Time and the Closing Date or the Option Closing Date, as the case may be, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King ▇▇▇▇▇▇▇, Head & Spalding ▇▇▇▇▇▇▇ LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinionsopinion, dated the Closing Date or the Option Closing Date, as the case may be, to the effect that:
(i) The Company is validly existing as a corporation in good standing under the laws of the State of Ohio, and is duly registered as a bank holding company and qualified as a financial holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) This Agreement has been duly authorized, executed and delivered by the Company;
(iiiii) The Indenture Deposit Agreement has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and legally binding agreement of the Companyinstrument, enforceable in accordance with its terms, subject, as to enforcement of remediesenforcement, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer reorganization and similar other laws of general applicability relating to or affecting the creditors’ rights and remedies of creditors generally, and the effects of to general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equityequity principles;
(iv) The Amendment relating to the Preferred Shares has been duly filed with the Secretary of State of the State of Ohio in accordance with the Ohio General Corporation Act and with all other governmental authorities where such filing is required in order to be effective under Ohio law;
(v) The shares of Preferred Stock represented by Securities being delivered to the Underwriters at such Time of Delivery have been duly authorized and, when issued and delivered as provided in this Agreement, will be duly and validly issued, fully paid and non-assessable, and will have the rights set forth in the Amended Articles of Incorporation, as amended to the Time of Delivery, including the Amendment; and the Common Shares initially issuable upon conversion of the Preferred Stock have been duly authorized and reserved for issuance, when issued in accordance with the provisions of the Securities, will be duly and validly issued, fully paid and nonassessable, and will have the rights set forth in such Amended Articles of Incorporation, as amended to the date such Common Shares are issued upon the conversion of the Preferred Stock, including the Amendment;
(vi) All of the outstanding Common Shares have been duly authorized, and validly issued, and are fully paid and nonassessable;
(vii) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption captions “Description of the NotesSeries G Preferred Stock,” “Description of the Common Shares,” “Description of the Depositary Shares” and “Description of Fifth Third Capital Stock” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and. The Securities and the Common Shares conform in all material aspects to the description thereof in the Pricing Prospectus and the Prospectus;
(vviii) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions caption “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security ActBenefit Plan Investor Considerations,” insofar as they purport it purports to constitute summaries a summary of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, 1974 and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects;
(ix) The Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act; and
(x) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to each Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Securities Act and the rules and regulations thereunder; although they do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Prospectus or the Prospectus, except for those referred to in the opinion in subsections (v) and (vi) of this Section 6(b), they have no reason to believe (i) that any part of the Registration Statement or any further amendment thereto made by the Company prior to each Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when such part or amendment became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) that the Pricing Disclosure Package, as of the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of circumstances under which they were made, not misleading; or (iii) that, as of its date and as of each Time of Delivery, the Prospectus or any further amendment or supplement thereto made by the Company prior to each Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion) contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and they do not know of any amendment to the Registration Statement required to be filed or of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement, the Basic Prospectus or the Prospectus which are not filed or incorporated by reference or described as required. In rendering such opinion or opinions, ▇▇▇▇▇▇▇, Head & ▇▇▇▇▇▇▇ LLP may rely (i) as to matters involving the application of laws of the State of New York upon the opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP delivered pursuant to Section 6(d); and (ii) as to certain other matters, on certificates of responsible officers of the Company, public officials and others deemed by such counsel to be responsible.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date or the Option Closing Date, as the case may be, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amendedOhio, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization Fifth Third Bank and Fifth Third Bank (Michigan) have been duly organized or incorporated and are validly existing as set forth a bank or corporation in good standing under the Prospectus, laws of its respective jurisdiction of organization or incorporation; and all of the issued shares of capital stock of the Company each such entity have been duly and validly authorized and issued and issued, are fully paid and non-assessable;
, and (iii) The Company has been duly qualified as a foreign corporation except for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; directors’ qualifying shares and except as otherwise set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank ) are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claimsclaims (such counsel being entitled to rely in respect of the opinion in this clause upon opinions of local counsel and in respect of matters of fact upon certificates of officers of the Company or its subsidiaries, provided that such counsel shall state that he believes that both you and he are justified in relying upon such opinions and certificates);
(viii) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(viiv) The execution documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to each Time of Delivery (other than the financial statements and related schedules therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and he has no reason to believe that any of such documents, when such documents became effective or were so filed, as the case may be, contained, in the case of a registration statement which became effective under the Securities Act, an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or, in the case of other documents which were filed under the Securities Act or the Exchange Act with the Commission, an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such documents were so filed, not misleading;
(v) The Company has all power and authority (corporate and other) necessary to execute and deliver this Agreement and the Securities and to perform its obligations hereunder and thereunder; the execution, delivery and performance by the Company of this Agreement and the terms of the Securities as established in the Company’s Amended Articles of Incorporation, as amended to each Time of Delivery, the issuance of the Securities, the compliance by the Company with all of the provisions of the Securities and this Agreement, including the issuance and sale of Common Shares upon conversion of the NotesSecurities in accordance with the Amendment, and the consummation of the transactions and performance of the obligations herein and therein contemplated herein, will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank any of its subsidiaries is a party or by which the Company or SunTrust Bank any of its subsidiaries is bound or to which any of the property or assets of the Company or SunTrust Bank any of its subsidiaries is subject, nor will such actions result in any violation of the provisions of the Restated Certificate Amended Articles of Incorporation, as amended, Incorporation or By-laws Code of Regulations of the Company or the organizational documents charter or by-laws of SunTrust Bank any of its subsidiaries, or result in any violation of any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank Company or any of its subsidiaries or any of their properties;; and
(viivi) No To the best of such counsel’s knowledge, no consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance issue and sale of the Notes Securities or the consummation by the Company of the transactions contemplated by this the Underwriting Agreement, except such as have been obtained under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes Securities by the Underwriters;
(viii) The Company is not and. In rendering such opinion or opinions, after giving effect ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ may rely as to the offering and sale of the Notes and matters involving the application of laws of the proceeds thereof, will not be an “investment company,” as such term is defined in State of New York upon the Investment Company Act opinion of 1940, as amended;▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP delivered pursuant to Section 6(e).
(ixd) The Registration Statement▇▇▇▇▇▇ & Bird LLP, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior special tax counsel to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits Company, shall have furnished to the Registration StatementUnderwriters an opinion, as to which such counsel need express no opinion) comply as to form in all material respects with dated the requirements of Closing Date or the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the CommissionOption Closing Date, as the case may be, complied as in form and substance satisfactory to form the Representative and its counsel, including an opinion to the effect statements set forth in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus under the caption “Certain United States Federal Income Tax Consequences,” insofar as it purports to constitute a summary of U.S. federal income tax law and regulations or the Prospectuslegal conclusions with respect thereto, such counsel shall confirm that he has no reason to believe that:
(1) each part constitute accurate summaries of the Registration Statement, as of its effective date, contained an untrue statement of a matters set forth therein in all material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1respects.
(de) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date or the Option Closing Date, as the case may be, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to involving the Indenture Trustee, application of laws of the State of Ohio upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion opinions of ▇▇▇▇▇▇▇ Head & ▇▇▇▇▇▇▇ LLP and ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇, Esq. delivered pursuant to Section Sections 6(b) and 6(c(c), respectively; and (ii) as to certain other matters on certificates of responsible officers of the Company, public officials and others deemed by such counsel to be responsible.
(ef) At On the Applicable Time date of the Prospectus at a time prior to the execution of this Agreement, at 9:30 A.M., New York City time, on the effective date of any post-effective amendment to the Registration Statement filed subsequent to the date of this Agreement and also at the each Time of Delivery, Ernst Deloitte & Young Touche LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I hereto (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) hereto and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, Delivery is attached as Annex I(b)) hereto).
(fi) Neither the Company nor any of its Significant Subsidiaries subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.t
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Bonds shall be subject subject, in the discretion of the Representatives, to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and the Closing Date, to the accuracy of the statements of the Company Company’s officers on and as of the Closing Date made in any certificates given pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereof; all filings (including, without limitation, the final term sheet contemplated Final Term Sheet) required by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) 433 under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for made, and no such filings by Rule 433shall have been made without the consent of the Representatives; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your the Representatives’ reasonable satisfaction.
(b) King & Spalding LLP, counsel for the Company, The Representatives shall have be furnished to the Underwriters an opinion or with opinions, dated the Closing Date, to the effect thatof:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President and Deputy General Counsel of the CompanyXcel Energy Inc., to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described substantially in the Prospectusform included as Exhibit A hereto;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ Faegre & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, substantially in the form included as Exhibit B hereto; and
(iii) ▇▇▇▇▇ Day, Chicago, Illinois, counsel for the Company, substantially in the form included as Exhibit C hereto.
(c) The Representatives shall have received from , counsel for the Underwriters, such opinion or opinions, opinions dated the Closing Date, Date with respect to such matters as the Underwriters Representatives may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely , and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the President or any Vice President of the Company, dated the Closing Date, as to the matters set forth in paragraphs (a) and (h) of this Section 7 and to the further effect that the signers of such certificate have examined the Registration Statement, the Prospectus and this Agreement and that, to the best of his or her knowledge:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to those matters that relate be performed or satisfied at or prior to the Indenture Trustee, upon the certificate or certificates of such entities and Closing Date; and
(ii) there has been no material adverse change in the condition of the Company and its subsidiaries taken as to matters governed a whole, financial or otherwise, or in the earnings, affairs or business prospects of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, from that set forth or contemplated by Georgia Lawthe Registration Statement, upon the opinion of King & Spalding LLP and most recent Preliminary Prospectus or the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectivelyProspectus.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP The Representatives shall have furnished to you a letter or lettersreceived letters from Deloitte & Touche LLP, independent public accountants for the Company (dated the respective dates date of delivery thereofthis Agreement and Closing Date, respectively, and in form and substance satisfactory to you, the Representatives) advising that (i) they are an independent registered public accounting firm with respect to the effect set forth in Annex I (a form Company as required by the Act and published rules and regulations of the executed copy of Commission thereunder, (ii) in their opinion, the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) consolidated financial statements and a form of the executed letter to be delivered on the effective date of any post-effective amendment to supplemental schedules included or incorporated by reference in the Registration Statement, Preliminary Prospectus or Prospectus and covered by their opinion filed with the Commission under Section 13 of the Exchange Act comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the published rules and regulations of the Commission thereunder, (iii) that they have performed limited procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company, a reading of the minutes of meetings of the Board of Directors, committees thereof, and of the shareholder of the Company since the date of the most recent audited financial statements included or incorporated by reference in the Preliminary Prospectus or Prospectus, inquiries of officials of the Company responsible for financial accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such limited review and procedures nothing came to their attention that caused them to believe that: (A) any material modifications should be made to any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, Preliminary Prospectus or Prospectus for them to be in conformity with generally accepted accounting principles or any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, Preliminary Prospectus or Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the rules and regulations of the Commission applicable to Form 10-Q; and (B) with respect to the period subsequent to the date of the most recent financial statements included or incorporated by reference in the Prospectus and except as set forth in or contemplated by the Registration Statement, Preliminary Prospectus or Prospectus, there were any adverse changes, at a specified date not more than three business days prior to the date of the letter, in the capital stock of the Company, increases in long-term debt or decreases in stockholder’s equity or net current assets of the Company on a consolidated basis as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated by reference in the Prospectus, or for the period from the date of the most recent financial statements included or incorporated by reference in the Prospectus to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in operating revenues, operating income or net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; and (iv) they have carried out specified procedures performed for the purpose of comparing certain specified financial information and percentages (which is limited to financial information derived from general accounting records of the Company or, to the extent not so derived, from schedules prepared by Company officers responsible for such accounting records) included or incorporated by reference in the Registration Statement, Preliminary Prospectus and Prospectus with indicated amounts in the financial statements or accounting records of the Company and (excluding any questions of legal interpretation) have found such information and percentages to be in agreement with the relevant accounting and financial information of the Company referred to in such letter in the description of the procedures performed by them.
(f) Subsequent to the respective dates as of which information is given in the Registration Statement and the most recent Preliminary Prospectus, there shall not have been any adverse change or decrease specified in the letter dated as of the Time Closing Date referred to in paragraph (e) of Deliverythis Section 7 which is so material and adverse as to make it impractical or inadvisable in the judgment of the Representatives to proceed with the public offering or the delivery of the Bonds on the terms and in the manner contemplated by the Pricing Disclosure Package.
(g) Subsequent to the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Bonds or any other debt securities or preferred stock of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as such term is attached defined by the Commission for purposes of Rule 436(g)(2) under the Act (other than downgrades of debt securities solely as Annex I(b)a result of downgrades of ratings of any third parties) and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Bonds or of any other debt securities or preferred stock of or guaranteed by the Company (other than an announcement with positive implications of a possible upgrading and other than with respect to debt securities solely as a result of any such announcement with respect to third parties insuring such debt securities).
(fh) Neither the Company nor any of its Significant Subsidiaries shall have subsidiaries (i) shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing most recent Preliminary Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or court or governmental action, order or decreedecree of any court, arbitrator or governmental or regulatory authority, otherwise than as set forth or contemplated in the Pricing most recent Preliminary Prospectus, and (ii) shall have incurred since the respective dates as date of which information is given this Agreement, any liabilities or obligations, direct or contingent, or entered into any transactions, not in the Pricing Prospectus ordinary course of business, which are material to the Company and its subsidiaries taken as a whole, and there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries taken as a whole or any change, or any development involving a prospective change, in or affecting the general affairs, management, business, financial position, stockholders’ equity or stockholder’s equity, results of operations or prospects of the Company and its subsidiaries, subsidiaries taken as a whole otherwise than as set forth or contemplated in the Pricing most recent Preliminary Prospectus and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), ) above is in the judgment of the Representatives Underwriters so material and adverse as to make it impracticable or inadvisable to proceed with the public offering offering, sale or the delivery of the Notes Bonds on the terms and in the manner contemplated in the Pricing Disclosure Package or by this Agreement and the Prospectus.
(gi) The Company No Representative shall have complied with advised the provisions of Company that the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the ActRegistration Statement, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which in the Prospectusopinion of counsel for the Underwriters is material or omits to state a fact which in the opinion of counsel for the Underwriters is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(j) The No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as the Closing Date, prevent the issuance or sale of the Bonds; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Bonds.
(k) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Indenture and this Agreement and the transactions contemplated hereby shall be reasonably satisfactory to counsel to the Underwriters, and prior to the Closing Date, the Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to Representatives such other matters customary information, certificates and documents as you they may reasonably request.
(l) The Company and Trustee shall have entered into the supplemental Indenture relating to the Bonds, and the Representatives shall have received counterparts, conformed as executed thereof, and the Bonds shall have been duly executed and delivered by the Company and authenticated by the Trustee. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be satisfactory in form and substance to the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing, or by telephone or facsimile transmission confirmed in writing.
Appears in 1 contract
Sources: Underwriting Agreement (Public Service Co of Colorado)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Republic made in any certificates pursuant to the provisions hereof, to the performance by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereofof this Agreement; the and any final term sheet contemplated by Section 5(A)(a4(a) hereof, and any other material required to be filed by the Company Republic pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.;
(b) King & Spalding LLP, counsel for The Head or Acting Head of the Company, Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Underwriters an opinion or opinionsRepresentatives such counsel’s written opinion, dated the Closing Date, to the effect that:
(i) This Agreement The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly Republic and validly authorizedthe Agreements constitute legal, executed and delivered by the Company and constitutes a valid and binding agreement obligations of the Company, Republic enforceable in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iiiiv) The issuance, execution and delivery of the Notes Securities have been duly and validly authorized by the Company and, when authenticated by the Indenture Trusteeauthorized, executed, issued and delivered by the Republic in accordance with the manner provided in Fiscal Agency Agreement, and, assuming due authentication and delivery by the Indenture will Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and Republic enforceable against the Company in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries Securities) of the matters set forth therein Republic that will rank equal in right of payment with all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel other present and future unsecured and unsubordinated External Indebtedness of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersRepublic;
(vi) The There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of this Agreementany of the Agreements, the issuance and sale issue of the Notes, and the consummation of the transactions and performance of the obligations Securities as contemplated herein and therein contemplated will not conflict with in the Prospectus, or result in a breach the performance or violation observance by the Republic of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Agreements or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesSecurities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the issuance due execution, delivery and sale performance by the Republic of any of the Notes Agreements or the consummation by Securities, (B) the Company validity or enforceability against the Republic of any of the transactions contemplated by this AgreementAgreements or the Securities, or (C) the issue, sale or delivery of the Securities, except such as have been obtained under for (I) Law 533 of November 11, 1999, (II) the Act and such consentssurviving portions of Law 185 of January 27, approvals1995 which were not repealed or amended by Law 533 of November 11, authorizations1999, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with (III) the purchase and distribution relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Decree No. 2681 of December 29, 1993, (VI) Resolution No. 3100 dated September 4, 2006 of the Notes Ministerio de Hacienda y Crédito Público, (VII) CONPES Document No. 3423 MINHACIENDA, DNP:SC, dated June 1, 2006, (VIII) Authorization by Act of the UnderwritersComisión Interparlamentaria de Crédito Público adopted in its meeting held on June 1, 2006 and (IX) External Resolution No. 6 dated June 2, 2006 of the Board of Governors of the Central Bank of Colombia (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) The Company To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not andnecessary that any Agreement or the Securities be registered, after giving effect recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit and the National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 3100 dated September 4, 2006 issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) a summary of the Agreements in the Diario Unico de Contratación Pública of the Republic, to satisfy the requirement for such publications, (B) notice to the offering Banco de la República concerning the external indebtedness represented by the Securities and sale (C) in accordance with External Resolution No. 6 of June 2, 2006, issued by the Junta Directiva del Banco de la República, the delivery of written information from the Director General of Public Credit of the Notes and Ministerio de Hacienda y Crédito Público to the application Junta Directiva del Banco de la República regarding the proposed issuance of the proceeds thereofSecurities, will not each of which shall be an “investment company,” as such term is defined in effected on or prior to the Investment Company Act of 1940, as amendedClosing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that, the Securities are held by a non-resident and non-domiciliary of the Republic.
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process; provided, that, except as provided under Article 177 of the Código Contencioso Administrativo of the Republic, which does not override Articles 684 or 513 of the Código de Procedimiento Civil and Article 19 of Decree 111 of January 15, 1996 of the Republic, the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur”, subject to the provisions of Article 693 of the Código de Procedimiento Civil which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic and subject to compliance with the provisions of Article 694 of the Código de Procedimiento Civil. The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus and any further amendments and supplements theretoProspectus, as applicableamended or supplemented, made and their filing with the Commission have been duly authorized by and on behalf of the Company prior to the Time of Delivery (other than the financial statements Republic, and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements amended, has been duly executed by and on behalf of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicableRepublic, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained information in the Registration Statement, the Pricing Disclosure Package or as amended, and the Prospectus, such counsel shall confirm that he as amended or supplemented, stated on the authority of public officials of the Republic has no reason to believe that:been stated in their official capacities thereunto duly authorized;
(1xvii) each part of The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of its effective dateColombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Registration Statement, at the respective times each part became effective, contained 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;
(2B) No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof or on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Pricing Disclosure Package, as of the Applicable Time, contained an any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) . Such counsel may state that he or she is not passing upon and does not assume any responsibility for the Prospectusaccuracy, as of its date and as completeness or fairness of the date hereof, statements contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
Prospectus (4) any amendment except to the Registration Statement is required to be filed or extent expressly set forth in (xvii) above) and that there are any contracts or other documents such counsel makes no representation that such counsel has independently verified the accuracy, completeness and fairness of a character required to be filed such statements (except as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1aforesaid), and that such counsel’s opinions referred to in this subsection (2)b) are limited to matters of Colombian law and, (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters insofar as the Underwriters opinion required by this subsection (b) is affected by matters of United States or New York law, it may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, be given in reliance upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
required by subsection (e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (fc) of this Section 7 and that, insofar as the foregoing opinions relate to such other matters as you may reasonably request.the legality, validity, binding effect or enforceability
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Republic made in any certificates pursuant to the provisions hereof, to the performance by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereofof this Agreement; the and any final term sheet contemplated by Section 5(A)(a4(a) hereof, and any other material required to be filed by the Company Republic pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.;
(b) King & Spalding LLP, counsel for The Head or Acting Head of the Company, Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Underwriters an opinion or opinionsRepresentatives such counsel’s written opinion, dated the Closing Date, to the effect that:
(i) This Agreement The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly Republic and validly authorizedthe Agreements constitute legal, executed and delivered by the Company and constitutes a valid and binding agreement obligations of the Company, Republic enforceable in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iiiiv) The issuance, execution and delivery of the Notes Securities have been duly and validly authorized by the Company and, when authenticated by the Indenture Trusteeauthorized, executed, issued and delivered by the Republic in accordance with the manner provided in Fiscal Agency Agreement, and, assuming due authentication and delivery by the Indenture will Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and Republic enforceable against the Company in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries Securities) of the matters set forth therein Republic that will rank equal in right of payment with all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel other present and future unsecured and unsubordinated External Indebtedness of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersRepublic;
(vi) The There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of this Agreementany of the Agreements, the issuance and sale issue of the Notes, and the consummation of the transactions and performance of the obligations Securities as contemplated herein and therein contemplated will not conflict with in the Prospectus, or result in a breach the performance or violation observance by the Republic of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Agreements or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesSecurities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the issuance due execution, delivery and sale performance by the Republic of any of the Notes Agreements or the consummation by Securities, (B) the Company validity or enforceability against the Republic of any of the transactions contemplated by this AgreementAgreements or the Securities, or (C) the issue, sale or delivery of the Securities, except such as have been obtained under for (I) Law 533 of November 11, 1999, (II) the Act and such consentssurviving portions of Law 185 of January 27, approvals1995 which were not repealed or amended by Law 533 of November 11, authorizations1999, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with (III) the purchase and distribution relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Decree No. 2681 of December 29, 1993, (VI) Resolution No. 5129 dated October 30, 2006 of the Notes Ministerio de Hacienda y Crédito Público, (VII) CONPES Document No. 3423 MINHACIENDA, DNP:SC, dated June 1, 2006, (VIII) Authorization by Act of the UnderwritersComisión Interparlamentaria de Crédito Público adopted in its meeting held on June 1, 2006 and (IX) External Resolution No. 6 dated June 2, 2006 of the Board of Governors of the Central Bank of Colombia (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) The Company To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not andnecessary that any Agreement or the Securities be registered, after giving effect recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit and the National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 5129 dated October 30, 2006 issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) a summary of the Agreements in the Diario Unico de Contratación Pública of the Republic, to satisfy the requirement for such publications, (B) notice to the offering Banco de la República concerning the external indebtedness represented by the Securities and sale (C) in accordance with External Resolution No. 6 of June 2, 2006, issued by the Junta Directiva del Banco de la República, the delivery of written information from the Director General of Public Credit and the National Treasury of the Notes and Ministerio de Hacienda y Crédito Público to the application Junta Directiva del Banco de la República regarding the proposed issuance of the proceeds thereofSecurities, will not each of which shall be an “investment company,” as such term is defined in effected on or prior to the Investment Company Act of 1940, as amendedClosing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that, the Securities are held by a non-resident and non-domiciliary of the Republic.
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process; provided, that, except as provided under Article 177 of the Código Contencioso Administrativo of the Republic, which does not override Articles 684 or 513 of the Código de Procedimiento Civil and Article 19 of Decree 111 of January 15, 1996 of the Republic, the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur”, subject to the provisions of Article 693 of the Código de Procedimiento Civil which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic and subject to compliance with the provisions of Article 694 of the Código de Procedimiento Civil. The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus and any further amendments and supplements theretoProspectus, as applicableamended or supplemented, made and their filing with the Commission have been duly authorized by and on behalf of the Company prior to the Time of Delivery (other than the financial statements Republic, and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements amended, has been duly executed by and on behalf of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicableRepublic, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained information in the Registration Statement, the Pricing Disclosure Package or as amended, and the Prospectus, such counsel shall confirm that he as amended or supplemented, stated on the authority of public officials of the Republic has no reason to believe that:been stated in their official capacities thereunto duly authorized;
(1xvii) each part of The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of its effective dateColombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Registration Statement, at the respective times each part became effective, contained 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;
(2B) No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof or on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Pricing Disclosure Package, as of the Applicable Time, contained an any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) . Such counsel may state that he or she is not passing upon and does not assume any responsibility for the Prospectusaccuracy, as of its date and as completeness or fairness of the date hereof, statements contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
Prospectus (4) any amendment except to the Registration Statement is required to be filed or extent expressly set forth in (xvii) above) and that there are any contracts or other documents such counsel makes no representation that such counsel has independently verified the accuracy, completeness and fairness of a character required to be filed such statements (except as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1aforesaid), and that such counsel’s opinions referred to in this subsection (2)b) are limited to matters of Colombian law and, (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters insofar as the Underwriters opinion required by this subsection (b) is affected by matters of United States or New York law, it may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, be given in reliance upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
required by subsection (e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (fc) of this Section 7 and that, insofar as the foregoing opinions relate to such other matters as you may reasonably request.the legality, validity, binding e
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Republic made in any certificates pursuant to the provisions hereof, to the performance by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereofof this Agreement; the and any final term sheet contemplated by Section 5(A)(a4(a) hereof, and any other material required to be filed by the Company Republic pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for The Head or Acting Head of the Company, Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Underwriters an opinion or opinionsRepresentatives such counsel’s written opinion, dated the Closing Date, to the effect that:
(i) This Agreement The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly Republic and validly authorizedthe Agreements constitute legal, executed and delivered by the Company and constitutes a valid and binding agreement obligations of the Company, Republic enforceable in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iiiiv) The issuance, execution and delivery of the Notes Securities have been duly and validly authorized by the Company and, when authenticated by the Indenture Trusteeauthorized, executed, issued and delivered by the Republic in accordance with the manner provided in Indenture, and, assuming due authentication and delivery by the Indenture will Trustee, the Securities constitute legal, valid and binding obligations of the Company, Republic enforceable in accordance with their terms entitled to the benefits of provided by the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equityIndenture;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries Securities) of the matters set forth therein Republic that will rank without any preference among themselves and equal in right of payment with all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel other present and future unsecured and unsubordinated External Indebtedness of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersRepublic;
(vi) The There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of this Agreementany of the Agreements, the issuance and sale issue of the Notes, and the consummation of the transactions and performance of the obligations Securities as contemplated herein and therein contemplated will not conflict with in the Prospectus, or result in a breach the performance or violation observance by the Republic of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Agreements or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesSecurities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the issuance due execution, delivery and sale performance by the Republic of any of the Notes Agreements or the consummation by Securities, (B) the Company validity or enforceability against the Republic of any of the transactions contemplated by this AgreementAgreements or the Securities, or (C) the issue, sale or delivery of the Securities, except such as have been obtained under for, (I) the Act and such consentsrelevant portions of Law 80 of October 28, approvals1993, authorizations(II) the surviving portions of Law 185 of January 27, registrations 1995 which were not repealed or qualifications as may be required under state securities or Blue Sky laws amended by Law 533 of November 11, 1999 (III) Law 533 of November 11, 1999, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Law 1624 of April 29, 2013, (VII) Law 1771 of December 30, 2015, (VIII) Law 2073 of December 31, 2020, (IX) Decree No. 1068 of May 26, 2015, (X) CONPES Document No. 3967 DNP, MINHACIENDA, dated August 16, 2019; (XI) evidence of publication of this Agreement in connection with the purchase and distribution Sistema Eléctronico de Contratación Pública SECOP of the Notes Republic, (XII) Authorization by Act of the UnderwritersComisión Interparlamentaria de Crédito Público adopted in its meetings held on September 3, 2019, and (XIII) Resolution No. 0039 dated January 12, 2021 of the Ministerio de Hacienda y Crédito Público (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) The Company To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not andnecessary that any Agreement or the Securities be registered, after giving effect recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General or Acting Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 0039 dated January 12, 2021 issued by Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) the publication of this Agreement in the Sistema Electrónico de Contratación Pública-SECOP of the Republic, to satisfy the requirement for such publications, and (B) filing of information before the Colombian Central Bank (Banco de la República) of public external indebtedness report on Form No. 6 (Formulario 6), resulting from the issuance of the Securities under the Indenture each of which shall be effected on or prior to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amendedClosing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, subject to the terms, conditions, limitations or exceptions under (i) Articles 192, 195, 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo); and (ii) Articles 593, 594 and 595 et al of Law 1564 of 2012 (Código General del Proceso); and Article 19 of Decree 111 of January 15, 1996, pursuant to which the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Indenture and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Indenture and the Securities as provided in Section 15 hereof, Section 9.7(a) of the Indenture and Section 16(a) of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur,” subject to the provisions of (i) Article 605 (et al) of Law 1564 of 2012 (Código General del Proceso), which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic; and (ii) subject to compliance with the provisions of Articles 606 and 607 of Law 1564 of 2012 (Código General del Proceso). The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic other than those governing judicial procedures, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly legalized copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus and any further amendments and supplements theretoProspectus, as applicableamended or supplemented, made and their filing with the Commission have been duly authorized by and on behalf of the Company prior to the Time of Delivery (other than the financial statements Republic, and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements amended, has been duly executed by and on behalf of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicableRepublic, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained information in the Registration Statement, the Pricing Disclosure Package or as amended, and the Prospectus, such counsel shall confirm that he as amended or supplemented, stated on the authority of public officials of the Republic has no reason to believe that:been stated in their official capacities thereunto duly authorized;
(1xvii) each part of The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Indenture, insofar as matters of its effective dateColombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Registration Statement, at the respective times each part became effective, contained 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;
(2B) No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof or on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Pricing Disclosure Package, as of the Applicable Time, contained an any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) . Such counsel may state that he or she is not passing upon and does not assume any responsibility for the Prospectusaccuracy, as of its date and as completeness or fairness of the date hereof, statements contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
Prospectus (4) any amendment except to the Registration Statement is required to be filed or extent expressly set forth in (xvii) above) and that there are any contracts or other documents such counsel makes no representation that such counsel has independently verified the accuracy, completeness and fairness of a character required to be filed such statements (except as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1aforesaid), and that such counsel’s opinions referred to in this subsection (2)b) are limited to matters of Colombian law and, (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters insofar as the Underwriters opinion required by this subsection (b) is affected by matters of United States or New York law, it may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, be given in reliance upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated required by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.sub
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Republic made in any certificates pursuant to the provisions hereof, to the performance by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereofof this Agreement; the and any final term sheet contemplated by Section 5(A)(a4(a) hereof, and any other material required to be filed by the Company Republic pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for The Head or Acting Head of the Company, Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Underwriters an opinion or opinionsRepresentatives such counsel’s written opinion, dated the Closing Date, to the effect that:
(i) This Agreement The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly Republic and validly authorizedthe Agreements constitute legal, executed and delivered by the Company and constitutes a valid and binding agreement obligations of the Company, Republic enforceable in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iiiiv) The issuance, execution and delivery of the Notes Securities have been duly and validly authorized by the Company and, when authenticated by the Indenture Trusteeauthorized, executed, issued and delivered by the Republic in accordance with the manner provided in Fiscal Agency Agreement, and, assuming due authentication and delivery by the Indenture will Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and Republic enforceable against the Company in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries Securities) of the matters set forth therein Republic that will rank equal in right of payment with all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel other present and future unsecured and unsubordinated External Indebtedness of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersRepublic;
(vi) The There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of this Agreementany of the Agreements, the issuance and sale issue of the Notes, and the consummation of the transactions and performance of the obligations Securities as contemplated herein and therein contemplated will not conflict with in the Prospectus, or result in a breach the performance or violation observance by the Republic of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Agreements or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesSecurities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the issuance due execution, delivery and sale performance by the Republic of any of the Notes Agreements or the consummation by Securities, (B) the Company validity or enforceability against the Republic of any of the transactions contemplated by this AgreementAgreements or the Securities, or (C) the issue, sale or delivery of the Securities, except such as have been obtained under for (I) Law 533 of November 11, 1999, (II) the Act and such consentssurviving portions of Law 185 of January 27, approvals1995 which were not repealed or amended by Law 533 of November 11, authorizations1999, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with (III) the purchase and distribution relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Decree No. 2681 of December 29, 1993, (VII) Resolution No. 1923 dated July 9, 2010 of the Notes Ministerio de Hacienda y Crédito Público, (VIII) CONPES Document No. 3662 DNP:SC-DEE MINHACIENDA, dated May 10, 2010, (IX) Authorization by Act of the UnderwritersComisión Interparlamentaria de Crédito Público adopted in its meeting held on May 19, 2010 and (X) External Resolution No. 3 dated April 8, 2009 of the Board of Governors of the Central Bank of Colombia (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) The Company To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not andnecessary that any Agreement or the Securities be registered, after giving effect recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 1923 dated July 9, 2010 issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) a summary of the Agreements in the Diario Único de Contratación Pública of the Republic, to satisfy the requirement for such publications, (B) notice to the offering Banco de la República concerning the external indebtedness represented by the Securities and sale (C) in accordance with External Resolution No. 3 of April 8, 2009, issued by the Junta Directiva del Banco de la República, the delivery of written information from the Director General of Public Credit and National Treasury of the Notes and Ministerio de Hacienda y Crédito Público to the application Junta Directiva del Banco de la República regarding the proposed issuance of the proceeds thereofSecurities, will not each of which shall be an “investment company,” as such term is defined in effected on or prior to the Investment Company Act of 1940, as amendedClosing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process; provided, that, except as provided under Article 177 of the Código Contencioso Administrativo of the Republic, which does not override Articles 684 or 513 of the Código de Procedimiento Civil and Article 19 of Decree 111 of January 15, 1996 of the Republic, the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur”, subject to the provisions of Article 693 of the Código de Procedimiento Civil which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic and subject to compliance with the provisions of Article 694 of the Código de Procedimiento Civil. The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus and any further amendments and supplements theretoProspectus, as applicableamended or supplemented, made and their filing with the Commission have been duly authorized by and on behalf of the Company prior to the Time of Delivery (other than the financial statements Republic, and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements amended, has been duly executed by and on behalf of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicableRepublic, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained information in the Registration Statement, the Pricing Disclosure Package or as amended, and the Prospectus, such counsel shall confirm that he as amended or supplemented, stated on the authority of public officials of the Republic has no reason to believe that:been stated in their official capacities thereunto duly authorized;
(1xvii) each part of The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of its effective dateColombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Registration Statement, at the respective times each part became effective, contained 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;
(2B) No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof or on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Pricing Disclosure Package, as of the Applicable Time, contained an any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) . Such counsel may state that he or she is not passing upon and does not assume any responsibility for the Prospectusaccuracy, as of its date and as completeness or fairness of the date hereof, statements contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
Prospectus (4) any amendment except to the Registration Statement is required to be filed or extent expressly set forth in (xvii) above) and that there are any contracts or other documents such counsel makes no representation that such counsel has independently verified the accuracy, completeness and fairness of a character required to be filed such statements (except as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1aforesaid), and that such counsel’s opinions referred to in this subsection (2)b) are limited to matters of Colombian law and, (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters insofar as the Underwriters opinion required by this subsection (b) is affected by matters of United States or New York law, it may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, be given in reliance upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
required by subsection (e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (fc) of this Section 7 and that, insofar as the foregoing opinions relate to such other matters as you may reasonably request.the legal
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Bonds shall be subject subject, in the discretion of the Underwriters, to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and the Closing Date, to the accuracy of the statements of the Company Company’s officers on and as of the Closing Date made in any certificates given pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereof; all filings (including, without limitation, the final term sheet contemplated Final Term Sheet) required by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) 433 under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for made, and no such filings by Rule 433shall have been made without the consent of the Underwriters; no stop order suspending the effectiveness of the Registration Statement or any part thereof or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and Commission; no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have has been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened received by the CommissionCompany; and all requests for additional information on the part of the Commission shall have been complied with to your the Underwriters’ reasonable satisfaction.
(b) King & Spalding LLP, counsel for the Company, The Underwriters shall have be furnished to the Underwriters an with opinion or opinionsletters, dated the Closing Date, to the effect thatof:
(i) This Agreement has been duly authorized, executed and delivered by counsel to the Company;
, that address substantially the matters set forth in Exhibit A; (ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of counsel to the Company, enforceable that address substantially the matters set forth in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equityExhibit B; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of counsel to the Company, entitled to that address substantially the benefits of the Indenture and enforceable against the Company matters set forth in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;Exhibit C; and
(iv) The statements set forth in counsel to the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to thereinCompany, constitute an accurate summary of that address substantially the matters set forth therein in all material respects; andExhibit D.
(vc) The statements set forth in Underwriters shall have received from , counsel for the Pricing Disclosure Package Underwriters, such opinion or opinions dated the Closing Date with respect to such matters as the Underwriters may reasonably require, and the Prospectus under the captions “United States Federal Tax Consequences Company shall have furnished to Holders of Notes” and “Employee Retirement Income Security Act,” insofar such counsel such documents as they purport reasonably request for the purpose of enabling them to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respectspass upon such matters.
(cd) The Company shall have furnished to the Underwriters an opiniona certificate of the President, Executive Vice President, Senior Vice President or any Vice President of the Company, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, as to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as matters set forth in the Prospectus, paragraphs (a) and all (h) of the issued shares of capital stock of the Company have been duly this Section 7 and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any further effect that the signers of its subsidiaries, would individually or in such certificate have examined the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments this Agreement and supplements theretothat, as applicable, made by to the best of his or her knowledge:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Time Closing Date; and
(ii) there has been no material adverse change in the condition of Delivery the Company, financial or otherwise, whether or not arising in the ordinary course of business, from that set forth in or contemplated by the Registration Statement, the most recent Preliminary Prospectus, or the Prospectus.
(other than e) The Underwriters shall have received letters from , independent public accountants for the Company (dated the date of this Agreement and the Closing Date, respectively, and in form and substance satisfactory to the Underwriters) advising that (i) they are an independent registered public accounting firm with respect to the Company as required by the Act and published rules and regulations of the Commission thereunder, (ii) in their opinion, the financial statements and related supplemental schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to included or incorporated by reference in the Registration Statement, as to which such counsel need express no opinion) the Pricing Disclosure Package or the Prospectus and covered by their opinion filed with the Commission under Section 13 of the Exchange Act comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the published rules and regulations of the Commission thereunder; and
, (xiii) The documents that they have performed limited procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company, a reading of the minutes of meetings of the Board of Directors, committees thereof, and of the shareholder of the Company since the date of the most recent audited financial statements included or incorporated by reference in the Prospectus Pricing Disclosure Package or any further amendment or supplement thereto made by the Prospectus, inquiries of officials of the Company prior responsible for financial accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such limited review and procedures nothing came to the Time of Delivery their attention that caused them to believe that: (other than the A) (1) any material modifications should be made to any unaudited financial statements and related schedules and other of the Company included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus for them to be in conformity with generally accepted accounting principles or (2) any unaudited financial information contained thereinstatements of the Company included or incorporated by reference in the Registration Statement, as to which such counsel need express no opinion), when they became effective the Pricing Disclosure Package or were filed with the Commission, as the case may be, complied Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for applicable to Form 10-Q; and (B) with respect to the accuracy, completeness or fairness period subsequent to the date of the most recent financial statements contained included or incorporated by reference in the Pricing Disclosure Package or the Prospectus and except as set forth in or contemplated by the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason there were any adverse changes, at a specified date not more than three business days prior to believe that:
(1) each part the date of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements thereinletter, in the light capital stock of the circumstances under which they were madeCompany, not misleading;
(3) the Prospectus, as incurrences of its date and as long-term debt of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment Company as compared to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to amounts shown on the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed most recent balance sheet included or incorporated by reference in the Pricing Disclosure Package or described the Prospectus or, as required; except thatof a specified date, there were any decreases in stockholder’s equity or net current assets of the Company as compared with respect to clauses (1)the amounts shown on the most recent balance sheet included or incorporated by reference in the Pricing Disclosure Package or the Prospectus, (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel or for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since period from the date of the latest audited most recent financial statements included or incorporated by reference in the Pricing Disclosure Package or the Prospectus to such specified date there were any loss decreases, as compared with the corresponding period in the preceding year, in operating revenues, operating income or interference net income of the Company, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Underwriters; and (iv) they have carried out specified procedures performed for the purpose of comparing certain specified financial information and percentages (which is limited to financial information derived from general accounting records of the Company or, to the extent not so derived, from schedules prepared by Company officers responsible for such accounting records) included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus with indicated amounts in the financial statements or accounting records of the Company and (excluding any questions of legal interpretation) have found such information and percentages to be in agreement with the relevant accounting and financial information of the Company referred to in such letter in the description of the procedures performed by them.
(f) Subsequent to the respective dates as of which information is given in the Registration Statement and the Pricing Disclosure Package, there shall not have been any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 7 which makes it impractical or inadvisable in the judgment of the Underwriters to proceed with the public offering or the delivery of the Bonds on the terms and in the manner contemplated by the Pricing Disclosure Package.
(g) Subsequent to the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Bonds or any other debt securities or preferred stock of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as such term is defined by the Commission for purposes of the Exchange Act (other than downgrades of debt securities issued by or on behalf of governmental entities for the benefit of the Company solely as a result of downgrades of ratings of any third parties insuring such debt securities) and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its business from fireoutlook with respect to, explosionits rating of the Bonds or of any other debt securities or preferred stock of or guaranteed by the Company (other than an announcement with positive implications of a possible upgrading and other than with respect to debt securities issued by or on behalf of governmental entities for the benefit of the Company solely as a result of any such announcement with respect to any third parties insuring such debt securities).
(h) Since the most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus there has been no material adverse change in the condition of the Company, flood financial or other calamityotherwise, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decreearising in the ordinary course of business, otherwise than as set forth or contemplated in the Pricing Prospectus, Disclosure Package and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), which is in the judgment of the Representatives Underwriters so material and adverse as to make it impracticable or inadvisable to proceed with the public offering offering, sale or the delivery of the Notes Bonds on the terms and in the manner contemplated in the Pricing Disclosure Package or by this Agreement and the Prospectus.
(gi) The Company No Underwriter shall have complied with advised the provisions of Company that the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the ActRegistration Statement, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which in the Prospectusopinion of counsel for the Underwriters is material or omits to state a fact which in the opinion of counsel for the Underwriters is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(j) The No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Bonds; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Bonds.
(k) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Indenture and this Agreement and the transactions contemplated hereby shall be reasonably satisfactory to counsel to the Underwriters, and prior to the Closing Date, the Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to Underwriters such other matters customary information, certificates and documents as you they may reasonably request.
(l) The Company and Trustee shall have entered into the supplemental indenture relating to the Bonds, and the Underwriters shall have received counterparts, conformed as executed thereof, and the Bonds shall have been duly executed and delivered by the Company and authenticated by the Trustee. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be satisfactory in form and substance to the Underwriters and their counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Underwriters. Notice of such cancellation shall be given to the Company in writing, or by telephone, telegraph or facsimile transmission confirmed in writing, as set forth in Section 14 hereof.
Appears in 1 contract
Sources: Underwriting Agreement (Northern States Power Co /Wi/)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Shares to be delivered at each Time of Delivery shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and the Closing Datesuch Time of Delivery, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a5(a) hereof; the final term sheet contemplated by Section 5(A)(a5(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.;
(b) King & Spalding LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Datedate of such Time of Delivery, with respect to such matters as the Underwriters may reasonably require. ; ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion opinions of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b6(d);
(c) and 6(c)The General Counsel of the Company shall have furnished to you his written opinion, respectively.dated the date of such Time of Delivery, in substantially the form of Annex I(a) hereto;
(d) King & Spalding LLP, counsel for the Company, shall have furnished to you their written opinion, dated the date of such Time of Delivery, in substantially the form of Annex I(b) hereto;
(e) At the Applicable Time and at the such Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I II hereto (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(aII(a) hereto and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the such Time of Delivery, Delivery is attached as Annex I(bII(b) hereto)).;
(fi) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes Shares on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.;
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” ”, as that term is defined by the Commission for purposes of Rule 436(g)(2Section 3(a)(62) under of the Exchange Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.;
(ih) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes Shares on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.;
(i) The Company shall have complied with the provisions of Section 5(d) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement;
(j) The Company shall have filed the Articles of Amendment with the Secretary of State of the State of Georgia prior to the First Time of Delivery; and
(k) The Company shall have furnished or caused to be furnished to you at the such Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters hereunder, as to purchase the Notes Shares to be delivered at each Time of Delivery, shall be subject subject, in their discretion, to the accuracy of the condition that all representations and warranties on the part and other statements of each of the Company contained and the Selling Stockholders herein are, at and as of the Applicable Timesuch Time of Delivery, true and correct, the date hereof and the Closing Date, to the accuracy of the statements condition that each of the Company made in any certificates pursuant to and the provisions hereof, to the performance by the Company Selling Stockholders shall each have performed all of its and their respective obligations hereunder theretofore to be performed, and to the following additional conditions:
(a) The U.S. Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a5(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material all materials required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods period prescribed for such filings filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by • P.M., [ • ] time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been receivedCommission; no stop order suspending or preventing the use of the US Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; no order having the effect of ceasing or suspending the distribution of the Shares shall have been issued and no proceeding for that purpose shall have been initiated or threatened by any Canadian Securities Regulatory Authority or the TSX; and all requests for additional information on the part of the Commission or any Canadian Securities Regulatory Authority shall have been complied with to your reasonable satisfaction.;
(b) King & Spalding The Canadian Prospectus shall have been filed with the Canadian Securities Regulatory Authorities in accordance with Ontario Securities Commission Rule 41-501 — General Prospectus Requirements and the Company shall have obtained a final MRRS decision document issued by the Ontario Securities Commission, in its capacity as principal regulator under MRRS, evidencing that final receipts of the Canadian Securities Regulatory Authorities have been issued in respect of the Canadian Prospectus;
(c) Gowling ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP, counsel for the Company, shall have furnished to the Underwriters an and their counsel a written opinion or opinionsopinions in the form attached as Annex II(a) hereto, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Companysuch Time of Delivery;
(iid) The Indenture has been duly and validly authorized▇▇▇▇▇▇ & Whitney LLP, executed and delivered by the Company and constitutes a valid and binding agreement of U.S. counsel for the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinionand their counsel their written opinion or opinions in the form attached as Annex II(b) hereto, dated the Closing Date, such Time of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the ProspectusDelivery;
(iie) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel for the UnderwritersSelling Stockholders, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter the Underwriters and their counsel their written opinion or lettersopinions in the form attached as Annex II(c) hereto, dated such Time of Delivery;
(f) On the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form date of the executed copy of the letter to be delivered U.S. Prospectus at a time prior to the execution of this Agreement is attached as Annex I(a) and a form Agreement, on the date of the executed letter Canadian Prospectus prior to be delivered filing thereof, at • a.m., [ • ] time, on the effective date of any post-effective amendment to the Registration Statement, Statement filed subsequent to the date of this Agreement and as of the also at each Time of Delivery, is attached as Annex I(b)).KPMG LLP shall have furnished to the Underwriters and their counsel a letter or letters, dated the respective dates of delivery hereof, updating the comfort letter delivered pursuant to Section 5(b)(vi) hereof to a date not later than the date of such Closing;
(fg) Neither None of the Company nor or any of its Significant the Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus Prospectuses any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing ProspectusProspectuses, and (ii) since the respective dates as of which information is given in the Pricing Prospectus Prospectuses there shall not have been any change in the capital stock or long-term debt of the Company or any material adverse change in the capital stock or long term debt of its subsidiaries any of the Subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ ' equity or results of operations of the Company and its subsidiariesthe Subsidiaries, taken as a whole, in each case, otherwise than as set forth or contemplated in the Pricing ProspectusProspectuses, the effect of which, in any such case described in clause (i) or (ii), is in the your judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes Shares being Delivered at such Time of Delivery on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.Prospectuses;
(gh) Subsequent to the Applicable Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof) and the Prospectuses, there shall not have been any change in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and the Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectuses, and the Underwriters shall not have become aware of any undisclosed material adverse information relating to the Company and the Subsidiaries, or other adverse material development, the effect of which, in any case referred to herein, is, in the sole judgment of the Underwriters, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Prospectuses;
(i) The Shares to be sold at such Time of Delivery shall have been duly listed for trading on the TSX as of the opening of trading on the date of the Time of Delivery, subject only to compliance with minimum distribution requirements and the Company providing to the TSX certain required routine documentation;
(j) The Company has obtained and delivered to the Underwriters executed copies of a lock-up agreement from each of the persons listed in Schedule III hereto, in form and substance satisfactory to the Underwriters;
(k) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d5(d) hereof with respect to the furnishing of prospectuses Prospectuses on the business day Business Day next succeeding the date of this Agreement.;
(hl) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if No order having the effect of ceasing or suspending the Distribution or Offering shall have been issued or proceedings therefor initiated or threatened by the Commission, any such event specified in clause (iv) Canadian Securities Regulatory Authority, the TSX or (v) in any other stock exchange, and no stop order suspending the judgment effectiveness of the Representatives makes it impracticable Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or inadvisable to proceed with threatened, and any request on the public offering or the delivery part of the Notes on Commission or any Canadian Securities Regulatory Authority for additional information shall have been complied with to the terms and in reasonable satisfaction of the manner contemplated in the Pricing Disclosure Package or the Prospectus.Underwriters;
(jm) The Company shall have furnished or caused to be furnished to you RBC at the such Time of Delivery certificates of officers of the Company and trustees satisfactory to you as addressed to the accuracy of the representations Underwriters and warranties of the Company herein at and as of such timetheir counsel, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such timeTime of Delivery, as to the matters set forth in subsections (a) and (fm) of this Section 8 and as to such other matters as you may reasonably request;
(n) The Company shall have furnished to RBC certificates dated the Closing Date, signed by appropriate officers of the Company, addressed to the Underwriters and their counsel, with respect to the charter, articles and by-laws of the Company, all resolutions of the stockholders and the board of directors of the Company and other corporate action relating to this Agreement and to the authorization, issue, sale and delivery of the Shares, the grant of the Optional Shares, the incumbency and specimen signatures of signing officers and with respect to such other matters as the Underwriters may reasonably request;
(o) The Company shall have furnished to RBC a certificate of the Company, signed by the Chief Executive Officer and Chief Financial Officer of the Company in their capacities as such and not individually, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectuses and this Agreement and that:
(i) the representations, warranties and covenants of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to such officer's knowledge, threatened;
(iii) no order, ruling or determination having the effect of suspending the sale or ceasing the trading of the Shares or any other securities of the Company has been issued or made by any Governmental Authority and is continuing in effect and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the Company threatened by any Governmental Authority; and
(iv) since • , 2006, there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectuses.
(p) Each Selling Stockholder shall have furnished to RBC a certificate, signed by each Selling Stockholder, dated the Closing Date, to the effect that such Selling Stockholder has carefully examined the Registration Statement, the Prospectuses and this Agreement and that the representations, warranties and covenants of such Selling Stockholder in this Agreement are true and correct in all material respects on and as of the Closing Date to the same effect as if made on the Closing Date and that such Selling Stockholder has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(q) The Underwriters shall have received on the Closing Date such other certificates, statutory declarations, agreements or materials that are customary in public offerings, in form and substance reasonably satisfactory to the Underwriters and their counsel, as the Underwriters and their counsel may reasonably request; and
(r) Gowling ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ counsel for the Company, shall have furnished to you such written opinion or opinions, dated such Time of Delivery and addressed to the Underwriters and their counsel, in form and substance satisfactory to you, regarding compliance with all the laws of the Province of Québec relating to the use of the French language in connection with the documents (including the Canadian Prospectus, any amendment or supplement thereto, forms of order and confirmation and certificates representing the Shares) to be delivered to purchasers of the Shares in the Province of Québec. If any of the conditions specified in this Section 8 shall not have been fulfilled as and when provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Underwriters and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be terminated by RBC at, or at any time prior to, a Time of Delivery, without liability on the part of the Underwriters or the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 7 hereof and the indemnity and contribution agreements as provided in Section 9 hereof. Notice of such cancellation shall be given to the Company and each Selling Stockholder in writing or by telephone or facsimile confirmed in writing.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Republic made in any certificates pursuant to the provisions hereof, to the performance by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representative; and the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfactionthis Agreement.
(b) King & Spalding LLP, counsel for The Head or Acting Head of the Company, Legal Affairs Group of the Dirección General de Crédito Público of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Underwriters an opinion or opinionsRepresentative such counsel’s written opinion, dated the Closing Date, to the effect that:
(i) This Agreement The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly Republic and validly authorizedthe Agreements constitute legal, executed and delivered by the Company and constitutes a valid and binding agreement obligations of the Company, Republic enforceable in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iiiiv) The issuance, execution and delivery of the Notes Securities have been duly and validly authorized by the Company and, when authenticated by the Indenture Trusteeauthorized, executed, issued and delivered by the Republic in accordance with the manner provided in Fiscal Agency Agreement, and, assuming due authentication and delivery by the Indenture will Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and Republic enforceable against the Company in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries Securities) of the matters set forth therein Republic that will rank equal in right of payment with all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel other present and future unsecured and unsubordinated External Indebtedness of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersRepublic;
(vi) The There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of this Agreementany of the Agreements, the issuance and sale issue of the Notes, and the consummation of the transactions and performance of the obligations Securities as contemplated herein and therein contemplated will not conflict with in the Prospectus, or result in a breach the performance or violation observance by the Republic of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Agreements or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesSecurities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the issuance due execution, delivery and sale performance by the Republic of any of the Notes Agreements or the consummation Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Decree No. 2681 of December 29, 1993, (V) authorization by Acts of the Comisión Interparlamentaria de Crédito Público adopted in its meetings held on June 20, 2002 and December 23, 2002, (VI) Resolution No. 055 dated January 20, 2003 and Resolution No. 1204 dated June 27, 2003 of the Ministerio de Hacienda y Crédito Público, (VII) approval No. 3156 dated March 5, 2002, as amended by approval No. 3205 dated December 4, 2002 of the Consejo Nacional de Política Económica y Social (“CONPES”), (VIII) approval No. 3176 dated July 15, 2002 of the CONPES, (IX) approval No. 3209 dated December 19, 2002 of the CONPES, and (X) External Resolution No. 2 of June 7, 2002, External Resolution No. 6 of December 23, 2002 and External Resolution No. 3 of June 20, 2003, issued by the Company Board of Directors of the transactions contemplated by this Agreement, except Central Bank (each of which shall be listed in such as have been obtained under counsel’s written opinion and copies of which shall be furnished to counsel to the Act and such consents, approvals, authorizations, registrations Underwriters on or qualifications as may be required under state securities or Blue Sky laws in connection with prior to the purchase and distribution of the Notes by the UnderwritersClosing Date);
(viii) The Company To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not andnecessary that any Agreement or the Securities be registered, after giving effect to recorded, published or filed with any court or other authority in the offering and sale Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit of the Notes and the application Ministerio de Hacienda y Crédito Público of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act a request for publication of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated Resolution No. 055 of January 20, 2003 and Resolution No. 1204 of June 27, 2003, issued by reference the Ministerio de Hacienda y Crédito Público in the Prospectus or any further amendment or supplement thereto made Diario Oficial of the Republic and (y) a summary of the Agreements in the Diario Unico de Contratación Pública of the Republic, to satisfy the requirement for such publications, (B) notice of the external indebtedness represented by the Company prior Securities to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) Banco de la República and (4C) abovein accordance with External Resolution No. 2 of June 7, such counsel need not express a belief with respect to 2002, External Resolution No. 6 of December 23, 2002 and External Resolution No. 3 of June 20, 2003, issued by the financial statements and related schedules and other financial information contained thereinJunta Directiva del Banco de la República, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of written information from the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions Director General of Public Credit of the first sentence of Section 5(A)(d) hereof with respect Ministerio de Hacienda y Crédito Público to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.the
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes hereunder shall be subject to the accuracy in all material respects of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and the Closing Date, to the accuracy of the any material statements of the Company made in any certificates certificates, opinions, affidavits, written statements or letters furnished to the Representative(s) or to counsel to the Underwriters identified on Schedule I hereto (“Underwriters’ Counsel”) pursuant to the provisions hereof, to the performance by the Company of its respective obligations hereunder and to each of the following additional conditionsconditions precedent:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company filings pursuant to the Rules and Regulations and all filings required by Rule 433(d433 or Rule 424(b) under the Act, shall have been filed with the Commission made within the applicable time periods prescribed for required by such Rules, and no such filings by Rule 433; no stop will have been made without the consent of the Representative(s).
(b) No order suspending the effectiveness of the Registration Statement or preventing or suspending the use of any part thereof Preliminary Prospectus, the Prospectus or any Issuer Free Writing Prospectus shall have been issued be in effect and no proceeding proceedings for that such purpose shall have been initiated be pending before or threatened by the Commission and Commission; no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under of the Act Rules and Regulations shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened received by the CommissionCompany; and all any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to your the reasonable satisfaction.
(b) King & Spalding LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement satisfaction of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respectsRepresentative(s).
(c) The Company shall have furnished to the Underwriters Representative(s) the opinion of the Chief Legal Officer, General Counsel or an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Associate General Counsel of the Company, addressed to the Underwriters and dated the Closing Date, to the effect that:
(i) The Company has been duly incorporated and is validly existing and in good standing as a corporation under the law of the jurisdiction of its incorporation and has full corporate power to conduct the businesses in which it is engaged as described in the Prospectus. Each of the Significant Subsidiaries that is incorporated under the laws of the United States or any State or territory thereof (a “Domestic Significant Subsidiary”) is a duly incorporated and validly existing corporation in good standing under the laws law of the State its jurisdiction of Georgiaincorporation, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with has full corporate power and authority to own its properties and conduct its business as described in the Prospectus;. Each of the Company and the Domestic Significant Subsidiaries is duly qualified to do business as a foreign corporation, is in good standing in its jurisdiction of incorporation and is duly registered as a broker-dealer, broker, dealer or investment advisor, as the case may be, in each jurisdiction in which the nature of the business conducted by it or in which the ownership or holding by lease of the properties owned or held by it requires such qualification or registration, except for such jurisdictions where the failure to so qualify, to be in good standing or to register would not have a Material Adverse Effect.
(ii) All the outstanding shares of capital stock of the Domestic Significant Subsidiaries have been duly authorized and are validly issued and outstanding and are fully paid and non-assessable and, except for directors’ qualifying shares, are owned by the Company or a subsidiary of the Company free and clear of any claims, liens, encumbrances and security interests.
(iii) The Shares conform in all material respects to the descriptions thereof contained in the Prospectus.
(iv) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company (including the Shares being delivered on the Closing Date) have been duly and validly authorized and issued and issued, are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for assessable and conform to the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth description thereof contained in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;.
(v) To There are no preemptive or other rights to subscribe for or to purchase, nor any restriction upon the voting or transfer of, any Shares pursuant to the Company’s charter or by-laws or any agreement or other instrument known to such counsel’s knowledge .
(vi) No consent, approval, authorization, order, registration or qualification of any court or governmental agency or body is required for the execution and delivery of this Agreement and the issuance of the Shares by the Company or compliance by the Company with all of the provisions of this Agreement, except for such consents, approvals, authorizations, orders registrations or qualifications as have been obtained under the Securities Act and such as may be required under the Exchange Act under state securities laws and Blue Sky laws of any jurisdiction.
(vii) Such counsel does not know of any contracts or other than documents that are required to be filed as set forth exhibits to the Registration Statement by the Securities Act or by the Rules and Regulations which have not been filed as exhibits to the Registration Statement or incorporated therein by reference as permitted by the Rules and Regulations.
(viii) Except as described in the Registration Statement, the most recent Preliminary Prospectus and the Prospectus, there are no legal or governmental proceedings pending to which the Company such counsel does not know of any litigation or any of its subsidiaries is a party governmental proceeding pending or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined threatened against the Company or any of its subsidiaries andthat might reasonably be expected, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate aggregate, to have a material adverse effect on Material Adverse Effect or that is required to be disclosed in the current or future general affairsRegistration Statement, management, consolidated financial position, stockholders’ equity or results of operations of the Company most recent Preliminary Prospectus and its subsidiaries, taken as a whole; and, to the Prospectus.
(ix) To such counsel’s knowledge, no neither the Company nor any of the Domestic Significant Subsidiaries is in violation of its corporate charter or by-laws, nor in default under any agreement, indenture or instrument known to such proceedings are threatened counsel, which violation or contemplated by governmental authorities default might reasonably be expected, individually or threatened by others;in the aggregate, to have a Material Adverse Effect.
(vix) The This Agreement has been duly authorized, executed and delivered by the Company; the execution and delivery of this Agreement, and the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated Shares will not conflict with with, or result in a breach the creation or violation imposition of any lien, charge or encumbrance upon any of the assets of the Company or the Domestic Significant Subsidiaries pursuant to the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel and to which the Company or SunTrust Bank the Domestic Significant Subsidiaries is a party or by which the Company bound, or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any a violation of the provisions of the Restated Certificate of Incorporation, as amended, corporate charter or Byby-laws of the Company or the organizational documents of SunTrust Bank Domestic Significant Subsidiary or any statute statute, rule, regulation or any order, rule or regulation order known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank the Domestic Significant Subsidiaries or any of their respective properties;, the effect of which conflict, violation or default might reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(viixi) No consentThe Registration Statement has become effective under the Securities Act, approvaland, authorizationto the best knowledge of such counsel, order, registration or qualification of or with any court or governmental agency or body is required for no stop order suspending the issuance and sale effectiveness of the Notes Registration Statement has been issued and no proceeding for that purpose has been instituted or the consummation threatened by the Company Commission, and no notice of objection of the transactions contemplated by this Agreement, except such as have been obtained under Commission to the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution use of the Notes Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) of the Rules and Regulations has been received by the Underwriters;Company.
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ixxii) The Registration Statement, the Prospectus and any further amendments and supplements thereto, each amendment thereof or supplement thereto (except that no opinion need be expressed as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related notes thereto or the schedules and or other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinionor statistical data included or incorporated by reference therein) comply as to form in all material respects with the requirements of the Securities Act and the rules Rules and regulations thereunder; andRegulations.
(xxiii) The documents incorporated Shares have been duly authorized and, upon payment and delivery in accordance with this Agreement, will be validly issued, fully paid and nonassessable. In rendering such opinion, such counsel may rely upon opinions of local counsel satisfactory to the Representative(s) for matters not governed by reference in New York law and may rely as to matters of fact, to the Prospectus extent he or any further amendment she deems proper, upon certificates or supplement thereto made by affidavits of officers of the Company prior and public officials.
(d) The Representative(s) shall have received from Underwriters’ Counsel such opinion or opinions, dated as of the Closing Date, with respect to the Time of Delivery (other than the financial statements issuance and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements sale of the Act or the Exchange ActShares, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Prospectus and the Pricing Disclosure Package or and other related matters as the ProspectusRepresentative(s) may reasonably require, and the Company shall have furnished to such counsel shall confirm that he has no reason such documents as they request for the purpose of enabling them to believe that:pass upon such matters.
(1e) each part The Company shall have furnished to the Representative(s) a certificate of its Chief Executive Officer, its President, Chief Operating Officer, Chief Administrative Officer, any Executive Vice President, Senior Vice President or Vice President, and its Chief Financial Officer, its Treasurer, its Financial Controller or its Global Head of Asset Liability Management (or other officer performing substantially the same function), dated as of the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus and this Agreement, and that, to the best of their knowledge after due inquiry:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date.
(ii) No stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or threatened; and no notice of objection of the Commission to the use of the Registration Statement or any post-effective date, contained an amendment thereto pursuant to Rule 401(g)(2) of the Rules and Regulations has been received by the Company; and
(iii) (w) The Registration Statement does not contain any untrue statement of a material fact or omitted omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
, (2x) the Pricing Disclosure Package, as of the Applicable Time, contained an did not contain any untrue statement of a material fact or omitted omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
, (4y) the Prospectus did not, as of its date, and does not contain any amendment untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (z) since the applicable Effective Date of the Registration Statement is there has not occurred any event required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b))an amended or supplemented Prospectus which has not been so set forth.
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.
Appears in 1 contract
Sources: Underwriting Agreement (Lehman Brothers Holdings Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Bonds shall be subject subject, in the discretion of the Underwriters, to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and the Closing Date, to the accuracy of the statements of the Company Company’s officers on and as of the Closing Date made in any certificates given pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereof; all filings (including, without limitation, the final term sheet contemplated Final Term Sheet) required by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) 433 under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for made, and no such filings by Rule 433shall have been made without the consent of the Underwriters; no stop order suspending the effectiveness of the Registration Statement or any part thereof or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and Commission; no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have has been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened received by the CommissionCompany; and all requests for additional information on the part of the Commission shall have been complied with to your the Underwriters’ reasonable satisfaction.
(b) King & Spalding LLP, counsel for the Company, The Underwriters shall have be furnished to the Underwriters an with opinion or opinionsletters, dated the Closing Date, to the effect thatof:
(i) This Agreement has been duly authorized, executed and delivered by counsel to the Company, that address substantially the matters set forth in Exhibit A;
(ii) The Indenture has been duly and validly authorizedFaegre ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, executed and delivered by the Company and constitutes a valid and binding agreement of counsel to the Company, enforceable that address substantially the matters set forth in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture ActExhibit B;
(iii) The issuance▇▇▇▇▇▇▇▇▇▇ Hyatt ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, execution and delivery of the Notes have been duly and validly authorized by the Company andLLP, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of counsel to the Company, entitled to that address substantially the benefits of the Indenture and enforceable against the Company matters set forth in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;Exhibit C; and
(iv) The statements set forth in Graves, Dougherty, ▇▇▇▇▇▇ & ▇▇▇▇▇, P.C., counsel to the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to thereinCompany, constitute an accurate summary of that address substantially the matters set forth therein in all material respects; andExhibit D.
(vc) The statements set forth in Underwriters shall have received from Hunton & ▇▇▇▇▇▇▇▇ LLP, New York, New York, counsel for the Pricing Disclosure Package Underwriters, such opinion or opinions dated the Closing Date with respect to such matters as the Underwriters may reasonably require, and the Prospectus under the captions “United States Federal Tax Consequences Company shall have furnished to Holders of Notes” and “Employee Retirement Income Security Act,” insofar such counsel such documents as they purport reasonably request for the purpose of enabling them to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respectspass upon such matters.
(cd) The Company shall have furnished to the Underwriters an opiniona certificate of the President, Executive Vice President, Senior Vice President or any Vice President of the Company, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, as to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as matters set forth in the Prospectus, paragraphs (a) and all (h) of the issued shares of capital stock of the Company have been duly this Section 7 and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any further effect that the signers of its subsidiaries, would individually or in such certificate have examined the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments this Agreement and supplements theretothat, as applicable, made by to the best of his or her knowledge:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Time Closing Date; and
(ii) there has been no material adverse change in the condition of Delivery the Company, financial or otherwise, whether or not arising in the ordinary course of business, from that set forth in or contemplated by the Registration Statement, the most recent Preliminary Prospectus, or the Prospectus.
(other than e) The Underwriters shall have received letters from Deloitte & Touche LLP, independent public accountants for the Company (dated the date of this Agreement and the Closing Date, respectively, and in form and substance satisfactory to the Underwriters) advising that (i) they are an independent registered public accounting firm with respect to the Company as required by the Act and published rules and regulations of the Commission thereunder, (ii) in their opinion, the financial statements and related supplemental schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to included or incorporated by reference in the Registration Statement, as to which such counsel need express no opinion) the Pricing Disclosure Package or the Prospectus and covered by their opinion filed with the Commission under Section 13 of the Exchange Act comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the published rules and regulations of the Commission thereunder; and
, (xiii) The documents that they have performed limited procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company, a reading of the minutes of meetings of the Board of Directors, committees thereof, and of the shareholder of the Company since the date of the most recent audited financial statements included or incorporated by reference in the Prospectus Pricing Disclosure Package or any further amendment or supplement thereto made by the Prospectus, inquiries of officials of the Company prior responsible for financial accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such limited review and procedures nothing came to the Time of Delivery their attention that caused them to believe that: (other than the A) (1) any material modifications should be made to any unaudited financial statements and related schedules and other of the Company included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus for them to be in conformity with generally accepted accounting principles or (2) any unaudited financial information contained thereinstatements of the Company included or incorporated by reference in the Registration Statement, as to which such counsel need express no opinion), when they became effective the Pricing Disclosure Package or were filed with the Commission, as the case may be, complied Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for applicable to Form 10-Q; and (B) with respect to the accuracy, completeness or fairness period subsequent to the date of the most recent financial statements contained included or incorporated by reference in the Pricing Disclosure Package or the Prospectus and except as set forth in or contemplated by the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason there were any adverse changes, at a specified date not more than three business days prior to believe that:
(1) each part the date of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements thereinletter, in the light capital stock of the circumstances under which they were madeCompany, not misleading;
(3) the Prospectus, as incurrences of its date and as long-term debt of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment Company as compared to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to amounts shown on the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed most recent balance sheet included or incorporated by reference in the Pricing Disclosure Package or described the Prospectus or, as required; except thatof a specified date, there were any decreases in stockholder’s equity or net current assets of the Company as compared with respect to clauses (1)the amounts shown on the most recent balance sheet included or incorporated by reference in the Pricing Disclosure Package or the Prospectus, (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel or for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since period from the date of the latest audited most recent financial statements included or incorporated by reference in the Pricing Disclosure Package or the Prospectus to such specified date there were any loss decreases, as compared with the corresponding period in the preceding year, in operating revenues, operating income or interference net income of the Company, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Underwriters; and (iv) they have carried out specified procedures performed for the purpose of comparing certain specified financial information and percentages (which is limited to financial information derived from general accounting records of the Company or, to the extent not so derived, from schedules prepared by Company officers responsible for such accounting records) included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus with indicated amounts in the financial statements or accounting records of the Company and (excluding any questions of legal interpretation) have found such information and percentages to be in agreement with the relevant accounting and financial information of the Company referred to in such letter in the description of the procedures performed by them.
(f) Subsequent to the respective dates as of which information is given in the Registration Statement and the Pricing Disclosure Package, there shall not have been any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 7 which makes it impractical or inadvisable in the judgment of the Underwriters to proceed with the public offering or the delivery of the Bonds on the terms and in the manner contemplated by the Pricing Disclosure Package.
(g) Subsequent to the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Bonds or any other debt securities or preferred stock of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as such term is defined by the Commission for purposes of the Exchange Act (other than downgrades of debt securities issued by or on behalf of governmental entities for the benefit of the Company solely as a result of downgrades of ratings of any third parties insuring such debt securities) and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its business from fireoutlook with respect to, explosionits rating of the Bonds or of any other debt securities or preferred stock of or guaranteed by the Company (other than an announcement with positive implications of a possible upgrading and other than with respect to debt securities issued by or on behalf of governmental entities for the benefit of the Company solely as a result of any such announcement with respect to any third parties insuring such debt securities).
(h) Since the most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus there has been no material adverse change in the condition of the Company, flood financial or other calamityotherwise, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decreearising in the ordinary course of business, otherwise than as set forth or contemplated in the Pricing Prospectus, Disclosure Package and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), which is in the judgment of the Representatives Underwriters so material and adverse as to make it impracticable or inadvisable to proceed with the public offering offering, sale or the delivery of the Notes Bonds on the terms and in the manner contemplated in the Pricing Disclosure Package or by this Agreement and the Prospectus.
(gi) The Company No Underwriter shall have complied with advised the provisions of Company that the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the ActRegistration Statement, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which in the Prospectusopinion of counsel for the Underwriters is material or omits to state a fact which in the opinion of counsel for the Underwriters is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(j) The No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Bonds; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Bonds.
(k) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Indenture and this Agreement and the transactions contemplated hereby shall be reasonably satisfactory to counsel to the Underwriters, and prior to the Closing Date, the Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to Underwriters such other matters customary information, certificates and documents as you they may reasonably request.
(l) The Bonds shall have been duly executed and delivered by the Company and authenticated by the Trustee. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be satisfactory in form and substance to the Underwriters and their counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Underwriters. Notice of such cancellation shall be given to the Company in writing, or by telephone, telegraph or facsimile transmission confirmed in writing, as set forth in Section 14 hereof.
Appears in 1 contract
Sources: Underwriting Agreement (Southwestern Public Service Co)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Issuers, Operating Partnerships and the General Partners contained herein as of the Applicable Time, the date hereof Execution Time and the Closing Date, to the accuracy of the statements of the Company Issuers, Operating Partnerships and the General Partners made in any certificates pursuant to the provisions hereof, to the performance by the Company Issuers, Operating Partnerships and the General Partners of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall Final Prospectus, and any supplement thereto, will have been filed with in the Commission pursuant to manner and within the time period required by Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof); the final term sheet contemplated by Section 5(A)(a) hereof, Term Sheet and any other material required to be filed by the Company Issuers pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and, to the knowledge of the Issuers, no stop order suspending the effectiveness of the Registration Statement or any part thereof notice that would prevent its use shall have been issued and no proceeding proceedings for that purpose shall have been initiated instituted or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfactionthreatened.
(b) King The Issuers shall have requested and caused ▇▇▇▇▇▇, ▇▇▇▇▇ & Spalding ▇▇▇▇▇▇▇ LLP, counsel for to the CompanyIssuers, shall the Operating Partnerships and the General Partners, to have furnished to the Underwriters an opinion or opinionsRepresentative their opinion, dated the Closing DateDate and addressed to the Representative, to the effect that:
(i) Finance Corp. is a corporation validly existing and in good standing under the laws of the jurisdiction of its organization, with all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted;
(ii) The General Partner is a corporation duly incorporated and presently subsisting under the laws of the jurisdiction of its organization, with all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted and to act as general partner of the Partnership and AmeriGas Propane;
(iii) Eagle General Partner is a corporation duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its organization, with all requisite corporate power and authority to own, lease and operate its properties and to carry on its business as now being conducted and to act as general partner of AmeriGas Eagle;
(iv) Each of the Partnership and the Operating Partnerships has been duly formed and each of the Partnership and the Operating Partnerships is validly existing as a limited partnership under the Delaware Act, with full partnership power and authority to own or lease, as the case may be, and to operate its properties and conduct its respective businesses as described in the Preliminary Final Prospectus and the Final Prospectus;
(v) The Issuers, the Operating Partnerships and the General Partners have all requisite corporate and partnership power and authority to execute, deliver and perform their respective obligations under this Agreement and the Indenture, and to consummate the transactions contemplated herein and therein, including, without limitation, the corporate or partnership power to issue, sell and deliver the Securities as provided herein;
(vi) The statements in the Basic Prospectus under the caption “Description of the Notes,” insofar as they constitute descriptions of the Indenture and the Securities or refer to statements of law or legal conclusions under New York, Delaware corporate or partnership or federal law (except for the Federal Motor Carrier Safety Act and any state or municipal fire safety codes, as to which such counsel need not express any opinion), constitute fair summaries thereof in all material respects;
(vii) No consent, approval, waiver, license or authorization, or other action by any New York, Delaware or federal governmental authority is required in connection with the issuance and sale of the Securities by the Issuers or for the consummation by each of the Issuers, the Operating Partnerships and the General Partners of their obligations under this Agreement, the Indenture or the Securities, except in each case such consents, approvals, waivers, licenses and other actions (A) as may be required under federal or state securities or Blue Sky laws (as to which, such counsel need not express any opinion), or (B) which, if not obtained, would not have a material adverse effect upon the financial condition, business or results of operations of the Issuers and the Operating Partnerships, taken as a whole, or the General Partners;
(viii) This Agreement has been duly authorized, authorized and validly executed and delivered by each of the CompanyPartnership Entities;
(iiix) None of the Issuers, or the Operating Partnerships or the General Partners is an “investment company” or a company “controlled by” an “investment company” as such terms are defined in the Investment Company Act of 1940, as amended;
(x) The execution and delivery of this Agreement by Finance Corp. and the consummation by the Issuers, the Operating Partnerships and the General Partners of the transactions contemplated hereby will not conflict with, constitute a default under or violate (A) any of the terms, conditions or provisions of the certificate of incorporation or by-laws of Finance Corp., (B) any of the terms, conditions or provisions of any document, agreement or other instrument known to such counsel to which either of the Issuers, the Operating Partnerships or the General Partners is a party or by which any of such entities is bound (other than as described in the Prospectus and except for documents, agreements or other instruments that will be extinguished on the Closing Date), (C) any New York, Delaware corporate or partnership or federal law or regulation (assuming compliance with all applicable federal and state securities or Blue Sky laws and assuming the receipt of all consents, approvals, waivers, licenses and other actions referred to in clause (2) of Section 6(b)(vii) above, as to which such counsel need not express any opinion) or (iv) any judgment, writ, injunction, decree, order or ruling known to such counsel applicable to either of the Issuers, the Operating Partnerships or the General Partners, except for such conflicts, breaches and defaults which would not have a material adverse effect on the financial condition, business, properties or results of operations of the Partnership and the Operating Partnerships, taken as a whole;
(xi) The Indenture has been duly and validly authorized, executed and delivered by each of the Company Issuers and (assuming the due authorization, execution and delivery thereof by the Trustee) and constitutes a the legal, valid and binding agreement obligation of the Companyeach such person, enforceable against each such person in accordance with its terms, subject, as subject (A) to enforcement of remedies, to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, fraudulent transfer moratorium and similar laws relating to or affecting the creditors’ rights and remedies of creditors generallygenerally and (B) as to enforceability, and the effects of to general principles of equity; , including principles of commercial reasonableness, good faith and fair dealing, regardless of whether enforcement is sought in a proceeding at law or in equity, and except (x) to the Indenture has been duly qualified extent that a waiver of rights under the Trust Indenture Actany usury laws may be unenforceable and (y) that rights to indemnification and contribution thereunder may be limited by federal or state securities laws or public policy relating thereto;
(iiixii) The issuance, execution issuance and delivery sale of the Notes Securities have been duly and validly authorized by each of the Company Issuers and, when issued and authenticated in accordance with the terms of the Indenture by the Indenture TrusteeIssuers and the Trustee and paid for by the Underwriters in accordance with the provisions of the Agreement and the Final Prospectus, executed, issued and delivered in the manner provided in the Indenture will constitute the legal, valid and binding obligations of the CompanyIssuers, enforceable against the Issuers in accordance with their terms and entitled to the benefits of the Indenture and enforceable against the Company in accordance with its termsIndenture, subject, as subject (A) to enforcement of remedies, to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, fraudulent transfer moratorium and similar laws relating to or affecting the creditors’ rights and remedies of creditors generally, generally and the effects of (B) as to enforceability to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing, regardless of whether enforcement is sought in a proceeding at law or in equity, and except to the extent that a waiver of rights under any usury laws may be unenforceable;
(ivxiii) The statements set forth in Neither the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, Agreement by the issuance and sale of the Notes, and General Partner nor the consummation of by the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation General Partner of any of the terms or provisions oftransactions contemplated hereby, or will conflict with, constitute a default under, any indenture, mortgage, deed of trust, loan agreement under or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which violate any of the property terms, conditions or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate articles of Incorporation, as amended, incorporation or Byby-laws of the Company General Partner;
(xiv) To the knowledge of such counsel, there is no pending or the organizational documents of SunTrust Bank threatened action, suit or any statute proceeding by or any order, rule or regulation known to such counsel of before any court or governmental agency agency, authority or body having jurisdiction over or any arbitrator involving the Company, SunTrust Bank Partnership Entities or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification property of or with any court or governmental agency or body is a character required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may to be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined disclosed in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Basic Prospectus, the Preliminary Final Prospectus or the Final Prospectus, and, to the knowledge of such counsel, there is no contract or other document of a character required to be described in the Registration Statement, the Basic Prospectus, the Preliminary Final Prospectus or the Final Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements in the Partnership’s Annual Report on Form 10-K for its fiscal year ended September 30, 2005 under the heading “Business — Government Regulation,” which are incorporated by reference into the Final Prospectus, insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings as of the filing date of the Partnership’s Annual Report on Form 10-K for its fiscal year ended September 30, 2005, and, to the knowledge of such counsel, such summaries are accurate and fair summaries as of the Closing Date in all material respects, except with respect to the Federal Motor Carrier Safety Act and any further amendments and supplements theretostate or municipal fire safety codes, as applicable, to which such counsel need not express any opinion; and
(xv) The Registration Statement has become effective under the Act; any filing required pursuant to Rule 424(b) has been made in the manner and within the time period required by the Company prior Rule 424(b); to the Time knowledge of Delivery such counsel, no stop order suspending the effectiveness of the Registration Statement or any notice that would prevent its use has been issued, no proceedings for that purpose have been instituted or threatened, and the Registration Statement and the Final Prospectus (other than the financial statements and related schedules and other financial and statistical information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statementtherein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Trust Indenture Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, such counsel shall state that it has participated in conferences with directors, officers and other representatives of the General Partner and Finance Corp. and representatives of the independent public accountants for each of the Issuers, the Operating Partnerships and the General Partners at which conferences the contents of the Registration Statement, the Disclosure Package and the Final Prospectus and related matters were discussed, and that, although such counsel has not independently verified and need not pass upon upon, or assume any responsibility for for, the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or and the ProspectusFinal Prospectus (except to the extent specified in the foregoing opinion), no facts have come to such counsel’s attention which lead such counsel shall confirm that he has no reason to believe that:
that (1i) each part of the Registration Statement, as of its effective dateon the Effective Date, contained an untrue statement of a material fact or omitted or omits to state any a material fact required to be stated therein or necessary in order to make the statements contained therein not misleading;
; (2ii) the Pricing documents included in the Disclosure Package, when taken together as of a whole, at the Applicable Execution Time, contained 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 contained therein, in the light of the circumstances under which they were made, not misleading;
, or (3iii) the Final Prospectus, as of its date and as of on the date hereofthereof or on the date of such opinion, contained or contains an untrue statement of a material fact or omitted or omits to state any a material fact required to be stated therein or necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; or
misleading (4) any amendment to the Registration Statement is required to be filed or it being understood that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief any view with respect to the financial statements and related notes, the financial statement schedules and the other financial information contained thereinfinancial, statistical and accounting data included in, or incorporated by reference into, any document included in the Disclosure Package and the Final Prospectus). In rendering their opinions as aforesaid, such counsel may rely upon an opinion or opinions, each dated the Closing Date, of other counsel retained by them or either of the Issuers, the Operating Partnerships or the General Partners as to laws of any jurisdiction other than the United States or the States of New York and Delaware; provided that (A) each such local counsel is reasonably acceptable to you and (B) such reliance is expressly authorized by each opinion so relied upon and a copy of each such opinion is delivered to you and is, in form and substance, reasonably satisfactory to you and your counsel. In rendering such opinion, such counsel may (A) rely in respect of matters of fact upon certificates (original counterparts of which shall be furnished to you) of the Partnership and the Operating Partnerships and of officers and employees of the Partnership, Finance Corp., and the General Partners and upon information obtained from public officials, (B) rely wholly upon (without independent investigation) opinions of other counsel issued in connection with the Transactions, (C) state that their opinion is limited to federal laws, New York law, Pennsylvania law, the Delaware Act and the Delaware General Corporation Law, (D) assume that all documents submitted to them as originals are authentic, that all copies submitted to them conform to the originals thereof, and that the signatures on all documents examined by such counsel are genuine, (E) state that they express no opinion with respect to clause the title of any of the General Partners, the Partnership, the Operating Partnerships or any of their affiliates to any real or personal property transferred by or to them and (iF) above, such counsel need not state that they express a belief no opinion with respect to state or local taxes or tax statutes to which any Form T-1.of the limited partners of the Partnership or the Operating Partnerships may be subject;
(dc) The Underwriters Representative shall have received from ▇▇▇▇▇▇▇▇ Shearman & ▇▇▇▇▇▇▇▇ Sterling LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representative, with respect to such the issuance and sale of the Securities, the Indenture, the Disclosure Package, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriters Representative may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP Issuers shall have furnished to you such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Issuers shall have furnished to the Representative a letter certificate, signed by the President or lettersany Vice President and the principal financial or accounting officer of Finance Corp. and the General Partners, dated the respective dates of delivery thereof, in form and substance satisfactory to youClosing Date, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.that:
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at Issuers, Operating Partnerships and the General Partners in this Agreement are true and correct on and as of such timethe Closing Date with the same effect as if made on the Closing Date and the Issuers, as to Operating Partnerships and the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.General Partners have complie
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Republic made in any certificates pursuant to the provisions hereof, to the performance by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereofof this Agreement; the and any final term sheet contemplated by Section 5(A)(a4(a) hereof, and any other material required to be filed by the Company Republic pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for The Head or Acting Head of the Company, Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Underwriters an opinion or opinionsRepresentatives such counsel’s written opinion, dated the Closing Date, to the effect that:
(i) This Agreement The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly Republic and validly authorizedthe Agreements constitute legal, executed and delivered by the Company and constitutes a valid and binding agreement obligations of the Company, Republic enforceable in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iiiiv) The issuance, execution and delivery of the Notes Securities have been duly and validly authorized by the Company and, when authenticated by the Indenture Trusteeauthorized, executed, issued and delivered by the Republic in accordance with the manner provided in Indenture, and, assuming due authentication and delivery by the Indenture will Trustee, the Securities constitute legal, valid and binding obligations of the Company, Republic enforceable in accordance with their terms entitled to the benefits of provided by the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equityIndenture;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries Securities) of the matters set forth therein Republic that will rank without any preference among themselves and equal in right of payment with all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel other present and future unsecured and unsubordinated External Indebtedness of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersRepublic;
(vi) The There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of this Agreementany of the Agreements, the issuance and sale issue of the Notes, and the consummation of the transactions and performance of the obligations Securities as contemplated herein and therein contemplated will not conflict with in the Prospectus, or result in a breach the performance or violation observance by the Republic of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Agreements or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesSecurities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the issuance due execution, delivery and sale performance by the Republic of any of the Notes Agreements or the consummation by Securities, (B) the Company validity or enforceability against the Republic of any of the transactions contemplated by this AgreementAgreements or the Securities, or (C) the issue, sale or delivery of the Securities, except such as have been obtained under for, (I) the Act and such consentsrelevant portions of Law 80 of October 28, approvals1993, authorizations(II) the surviving portions of Law 185 of January 27, registrations 1995 which were not repealed or qualifications as may be required under state securities or Blue Sky laws amended by Law 533 of November 11, 1999 (III) Law 533 of November 11, 1999, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Law 1624 of April 29, 2013, (VII) Law 1771 of December 30, 2015, (VIII) Law 2073 of December 31, 2020, (IX) Decree No. 1068 of May 26, 2015, (X) CONPES Document No. [•] DNP, MINHACIENDA, dated [•]; (XI) evidence of publication of this Agreement in connection with the purchase and distribution Sistema Eléctronico de Contratación Pública SECOP of the Notes Republic, (XII) Authorization by Act of the UnderwritersComisión Interparlamentaria de Crédito Público adopted in its meetings held on [•], and (XIII) Resolution No. [•] dated [•] of the Ministerio de Hacienda y Crédito Público (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) The Company To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not andnecessary that any Agreement or the Securities be registered, after giving effect recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General or Acting Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. [•] dated [•] issued by Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) the publication of this Agreement in the Sistema Electrónico de Contratación Pública-SECOP of the Republic, to satisfy the requirement for such publications, and (B) filing of information before the Colombian Central Bank (Banco de la República) of public external indebtedness report on Form No. 6 (Formulario 6), resulting from the issuance of the Securities under the Indenture each of which shall be effected on or prior to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amendedClosing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, subject to the terms, conditions, limitations or exceptions under (i) Articles 192, 195, 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo); and (ii) Articles 593, 594 and 595 et al of Law 1564 of 2012 (Código General del Proceso); and Article 19 of Decree 111 of January 15, 1996, pursuant to which the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Indenture and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Indenture and the Securities as provided in Section 15 hereof, Section 9.7(a) of the Indenture and Section 16(a) of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur,” subject to the provisions of (i) Article 605 (et al) of Law 1564 of 2012 (Código General del Proceso), which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic; and (ii) subject to compliance with the provisions of Articles 606 and 607 of Law 1564 of 2012 (Código General del Proceso). The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic other than those governing judicial procedures, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly legalized copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus and any further amendments and supplements theretoProspectus, as applicableamended or supplemented, made and their filing with the Commission have been duly authorized by and on behalf of the Company prior to the Time of Delivery (other than the financial statements Republic, and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements amended, has been duly executed by and on behalf of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicableRepublic, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained information in the Registration Statement, the Pricing Disclosure Package or as amended, and the Prospectus, such counsel shall confirm that he as amended or supplemented, stated on the authority of public officials of the Republic has no reason to believe that:been stated in their official capacities thereunto duly authorized;
(1xvii) each part of The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Indenture, insofar as matters of its effective dateColombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Registration Statement, at the respective times each part became effective, contained 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;
(2B) No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof or on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Pricing Disclosure Package, as of the Applicable Time, contained an any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) . Such counsel may state that he or she is not passing upon and does not assume any responsibility for the Prospectusaccuracy, as of its date and as completeness or fairness of the date hereof, statements contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
Prospectus (4) any amendment except to the Registration Statement is required to be filed or extent expressly set forth in (xvii) above) and that there are any contracts or other documents such counsel makes no representation that such counsel has independently verified the accuracy, completeness and fairness of a character required to be filed such statements (except as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1aforesaid), and that such counsel’s opinions referred to in this subsection (2)b) are limited to matters of Colombian law and, (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters insofar as the Underwriters opinion required by this subsection (b) is affected by matters of United States or New York law, it may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, be given in reliance upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
required by subsection (e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (fc) of this Section 7 and that, insofar as to such other matters as you may reasonably request.the
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable TimeTime of Sale, the date hereof Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus Final Prospectus, and any supplement thereto, shall have been filed with in the Commission pursuant to manner and within the time period required by Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof); the final term sheet contemplated by Section 5(A)(a5(b) hereofhereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any part thereof notice by the Commission objecting to its use shall have been issued and no proceeding proceedings for that purpose shall have been initiated instituted or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfactionthreatened.
(b) King & Spalding ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinionsRepresentatives its opinion, dated the Closing DateDate and addressed to the Representatives, to the effect that:
(i) This Agreement the Company has been duly authorizedorganized and is validly subsisting as a corporation under the laws of the Commonwealth of Pennsylvania, executed with full corporate power and delivered by authority under its articles of incorporation to own or lease, as the Companycase may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
(ii) The Indenture has been duly the Securities are in due and validly authorized, executed proper form; the issue and delivered sale of the Securities by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement the terms of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes this Agreement have been duly and validly authorized by all necessary corporate action on the part of the Company and by orders duly entered by the Pennsylvania Public Utility Commission. The Securities have been duly executed and delivered by the duly authorized officers of the Company and, when authenticated and delivered by the Indenture TrusteeTrustee against payment therefor, executed, issued and delivered in the manner provided in the Indenture will constitute legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as their terms subject to enforcement (1) the effect of remedies, to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and conveyance, fraudulent transfer, marshalling or similar laws affecting the creditors’ rights and remedies of creditors generally, generally and the effects of (2) general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(iii) the Indenture has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by duly authorized officers of the Company. The Indenture constitutes a legal, valid and binding instrument, enforceable in accordance with its terms except as the enforceability thereof may be limited by (1) the effect of applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer, marshalling or similar laws affecting creditors’ rights and remedies generally and (2) general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether such enforceability is considered in a proceeding in equity or at law). The Indenture has been duly qualified under the Trust Indenture Act;
(iv) The statements set forth in the Pricing Disclosure Package and Indenture constitutes a valid mortgage lien of record upon all real property presently owned by the Prospectus under the caption “Description of the Notes” insofar Company described therein as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished subject to the Underwriters an opinionlien thereof (other than properties expressly excepted therefrom, dated properties properly released from the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel lien thereof pursuant to the terms thereof and substantially all of the Company’s leaseholds), and the Securities are secured by a valid and, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing extent that it may be perfected by filing under the laws Uniform Commercial Code, a perfected security interest in such of the State personal property of Georgia, and the Company as is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
Indenture, whether such personal property is now owned or hereinafter acquired by the Company (ii) The Company has an authorized capitalization other than properties expressly excepted therefrom; properties released from the security interest created thereby; “proceeds” as set forth defined in the Prospectus, and all Uniform Commercial Code to the extent limited by the terms of Section 9-315 of the issued shares of capital stock Uniform Commercial Code; after-acquired property subject to Section 552 of the Company have been duly Federal Bankruptcy Code; property sold to a buyer in the ordinary course of business, licensed to a licensee in the ordinary course of business or leased to a lessee in the ordinary course of business; insurance policies (except to the extent that payments thereunder are “proceeds,” as defined in the Uniform Commercial Code); and validly authorized and issued and contract rights or general intangibles which by their terms, or by law, are fully paid and non-assessable;
(iii) The Company has been duly qualified not assignable); such counsel need express no opinion as a foreign corporation to any actions that may be required to be taken periodically under the Uniform Commercial Code or other applicable law in order for the transaction validity or perfection of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure security interest to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claimsmaintained;
(v) To this Agreement has been duly authorized, executed and delivered by the Company;
(vi) such counsel is not representing the Company in any pending litigation in which it is a named defendant, or in any litigation that is overtly threatened in writing against it by a potential claimant, that challenges the validity or enforceability of, or seeks to enjoin the performance of, the transactions contemplated by this Agreement, the Indenture and the Securities and, to the knowledge of such counsel’s knowledge and other than as set forth in the Prospectus, there are no material pending legal or governmental proceedings pending to which the Company or any of its subsidiaries subsidiary is a party or of and which are required to be set forth in the documents incorporated by reference in the Registration Statement and Final Prospectus other than those referred to in such documents; and the statements in any property Preliminary Prospectus and the Final Prospectus under the heading “Description of the Company or any of its subsidiaries is Bonds and First and Refunding Mortgage” fairly summarize the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and matters therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesdescribed;
(vii) the PAPUC has entered an appropriate order authorizing the Company to issue and sell the Securities as contemplated herein; such order is in full force and effect and, to the best of such counsel’s knowledge after due inquiry, no proceeding has been initiated upon appeal from or to review the effectiveness of such order. No other consent, approval, authorization, order, registration filing with or qualification order of or with any court or state or federal governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of in connection with the transactions contemplated by in this Agreement, the Indenture or the Securities, except such as have been obtained under the Act Act, the Trust Indenture Act, and from the PAPUC, and such consents, approvals, authorizations, registrations or qualifications as may be required under state the blue sky or securities or Blue Sky laws of any jurisdiction in connection with the purchase and distribution sale of the Notes Securities by the UnderwritersUnderwriters in the manner contemplated in this Agreement and the Final Prospectus and such other approvals (specified in such opinion) as have been obtained;
(viii) The Company is not and, after giving effect to the offering and sale Registration Statement has become effective under the Act; any required filing of the Notes Base Prospectus, any Preliminary Prospectus and the application of the proceeds thereofFinal Prospectus, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicablepursuant 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, made no stop order suspending the effectiveness of the Registration Statement or any notice by the Company prior Commission objecting to its use has been issued, no proceedings for that purpose have been instituted or threatened, and the Time of Delivery Registration Statement (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they as of the date the Registration Statement originally became effective or were filed under the Act, and together with the CommissionPreliminary Prospectus and the final Prospectus, as of each “new effective date” with respect to the Notes pursuant to and within the meaning of Rule 430B(f)(2) under the Act, complied, and the Preliminary Prospectus and the final Prospectus (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion), as of their respective dates, complied, and the final Prospectus (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion), as of the date hereof, complies, in each case may be, complied as to form in all material respects with the applicable requirements of the Act or Act, the Exchange ActAct and the Trust Indenture Act and the respective rules thereunder;
(ix) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus, will not be required to register as an “investment company” under the Investment Company Act of 1940, as applicableamended;
(x) the execution and delivery of this Agreement, the Indenture and the Securities, the consummation of any other transactions contemplated by this Agreement, the Indenture and the Securities, and the rules and regulations fulfillment of the Commission thereunder. In additionterms hereof or thereof do not, although such counsel need not pass upon and the performance of the obligations hereunder and thereunder will not, (1) violate the articles of incorporation and bylaws of the Company; (2) violate any statute, law, rule, regulation, judgment, order or assume decree applicable to the Company or any responsibility of its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its subsidiaries or any of their properties; or (3) conflict with, breach or result in a default under the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of its subsidiaries is a party or bound or to which their property is subject that is listed in the Exhibit Index to the Company’s Form 10-K for the accuracyfiscal year ended December 31, completeness 2017 and Forms 8-K filed with the Commission during the period between January 1, 2018 and the Closing Date or fairness result in the creation or imposition of any security interest in or lien or encumbrance upon, any property or asset of the statements contained Company or any of its subsidiaries pursuant to any item referred to in this clause (3) (other than the Registration Statementlien of the Indenture);
(xi) the discussions in any Preliminary Prospectus and the Final Prospectus in each case under the caption “Certain United States Federal Income Tax Consequences” are fair and accurate summaries of the matters addressed therein, based upon current law and the Pricing Disclosure Package assumptions stated or the Prospectusreferred to therein, and such counsel shall confirm that he these discussions, to the extent they constitute matters of federal income tax law or legal conclusions with respect thereto, represent its opinion; and
(xii) such counsel has no reason to believe that:
that (1) each part of on the Effective Date, the Registration Statement, as of its effective date, Statement contained an any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
, (2) the Pricing Disclosure Package, as of the Applicable TimeTime of Sale, the Disclosure Package contained an any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
misleading or (3) the Prospectus, as of its date and as of on the date hereofClosing Date, contained the Final Prospectus included or contains an includes any untrue statement of a material fact or omitted or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
misleading (4) any amendment to the Registration Statement is required to be filed or that there are any contracts or in each case, other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to than the financial statements and related schedules and other financial information contained therein, and with respect as to clause (i) abovewhich such counsel need express no opinion); In rendering such opinion, such counsel need not express a belief with respect may rely (A) as to matters involving the application of laws of any Form T-1jurisdiction other than the Commonwealth of Pennsylvania or the Federal laws of 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 Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(dc) The Underwriters Representatives shall have received from ▇▇▇▇▇▇▇▇ Winston & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to such the issuance and sale of the Securities, the Indenture, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriters Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. ▇▇▇▇▇▇▇▇ In rendering such opinion, Winston & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trusteerely, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Lawthe laws of the State of Pennsylvania, upon the opinion of King & Spalding LLP and counsel for the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant Company referred to in Section 6(b) and 6(c), respectively.
(ed) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP The Company shall have furnished to you the Representatives a letter certificate of the Company, signed by the Chairman of the Board or lettersthe President and the principal financial or accounting officer of the Company, dated the respective dates of delivery thereof, in form and substance satisfactory to youClosing Date, to the effect set forth in Annex I (a form that the signers of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendment or supplement thereto and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Time of Delivery, is attached Closing Date with the same effect as Annex I(b)).if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(fii) Neither no stop order suspending the Company nor effectiveness of the Registration Statement or any of notice by the Commission objecting to its Significant Subsidiaries shall use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iiii) sustained since the date of the latest audited most recent financial statements included or incorporated by reference in the Pricing Disclosure Package and the Final Prospectus (exclusive of any loss or interference with its business from firesupplement thereto), explosionthere has been no Material Adverse Effect, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than except as set forth in or contemplated in the Pricing ProspectusDisclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives.
(iif) since Subsequent to the respective Execution Time or, if earlier, the dates as of which information is given in the Pricing Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the capital stock letter or long-term debt letters referred to in paragraph (e) of the Company this Section 6 or any of its subsidiaries or (ii) any change, or any development involving a prospective change, in or affecting the general affairsfinancial condition, management, financial position, stockholders’ equity business or results of operations properties of the Company and its subsidiaries, otherwise than taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Pricing Prospectus, Disclosure Package or the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any such case described referred to in clause (i) or (ii)) above, is is, in the sole judgment of the Representatives Representatives, so material and adverse as to make it impracticable impractical or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner Securities as contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.Registration
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company Fund and the Adviser contained herein as of the Applicable Execution Time, the date hereof and the Closing Date, to the accuracy of the statements of the Company Fund and the Adviser made in any certificates pursuant to the provisions hereof, to the performance by the Company Fund or the Adviser of its their obligations hereunder or to the Representatives’ waiver in writing thereof and to the following additional conditions:
(a) The Final Prospectus shall and any supplements thereto have been filed with in the Commission pursuant to Rule 424(b) under the Act manner and within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433497; and no stop order suspending the effectiveness of the Registration Statement or any part thereof notice objecting to its use or order pursuant to Section 8(e) of the 1940 Act shall have been issued and no proceeding proceedings for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated instituted or threatened by the Commission; , and all requests any request of the Commission for additional information on (to be included in the part of the Commission Registration Statement or Final Prospectus or otherwise) shall have been complied with to your reasonable satisfactionin all material respects.
(b) King The Fund shall have requested and caused Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & Spalding ▇▇▇▇ LLP, counsel for the CompanyFund, shall to have furnished to the Underwriters an opinion or opinionsRepresentatives its opinion, dated the Closing DateDate and addressed to the Representatives, to the effect that:
(i) This Agreement Based solely on our review of the Delaware Certificate, the Trust is duly formed and is validly existing and is in good standing under the DSTA.
(ii) Based solely on our review of the New York Certificate, the Trust is authorized to do business in the State of New York.
(iii) The Trust has the statutory trust power and authority under the DSTA to own, lease and operate its properties and to conduct its business as described in the Preliminary Prospectus and the Prospectus.
(iv) The Trust has the statutory trust power and authority under the DSTA to execute and deliver each of the Transaction Agreements and to consummate the transactions contemplated thereby, including the issuance and sale of the Securities.
(v) Each of the NY Transaction Agreements has been duly authorized, executed and delivered by all requisite statutory trust action on the Company;
(ii) part of the Trust under the DSTA and duly executed and delivered by the Trust under the laws of the State of New York to the extent that such execution and delivery is governed by the laws of the State of New York. The Indenture Custodian Contract has been duly and validly authorized, executed and delivered by all requisite statutory trust action on the Company part of the Trust under the DSTA and duly executed and delivered by the Trust under the laws of the Commonwealth of Massachusetts to the extent that such execution and delivery is governed by the laws of the Commonwealth of Massachusetts.
(vi) Each of the Investment Advisory Agreement and the Transfer Agency Agreement constitutes a the valid and binding agreement obligation of the CompanyTrust, enforceable against the Trust in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified terms under the Trust Indenture Act;
(iii) The issuance, execution and delivery laws of the Notes have been duly and validly authorized by State of New York. The Custodian Contract constitutes the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations obligation of the CompanyTrust, entitled to the benefits of the Indenture and enforceable against the Company Trust in accordance with its termsterms under the laws of the Commonwealth of Massachusetts.
(vii) Neither the execution and delivery by the Trust of the Transaction Agreements nor the consummation by the Trust of the transactions contemplated thereby, subjectincluding the issuance and sale of the Securities: (i) conflicts with the Organizational Documents, as to enforcement of remedies(ii) constitutes a violation of, to bankruptcyor a default under, insolvencyany Scheduled Contract, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iii) contravenes any Scheduled Order or (iv) causes the creation of any security interest or lien (other than those expressly created by the Transaction Agreements) upon any of the property of the Trust pursuant to any Scheduled Contracts.
(viii) Neither the execution and delivery by the Trust of the NY Transaction Agreements nor the consummation by the Trust of the transactions contemplated thereby, including the issuance and sale of the Securities, violates the DSTA or any law, rule or regulation of the State of New York. Neither the execution and delivery by the Trust of the Custodian Contract, nor the consummation by the Trust of the transactions contemplated thereby, including the issuance and sale of the Securities, violates the DSTA or any law, rule or regulation of the Commonwealth of Massachusetts.
(ix) Neither the execution and delivery by the Trust of the NY Transaction Agreements nor the consummation by the Trust of the transactions contemplated thereby, including the issuance and sale of the Securities, requires the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under the DSTA or any law, rule or regulation of the State of New York or the United States of America except for those consents, approvals, licenses and authorizations already obtained and those filings, recordings and registrations already made. Neither the execution and delivery by the Trust of the Custodian Contract nor the consummation by the Trust of the transactions contemplated thereby requires the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under the DSTA or any law, rule or regulation of the Commonwealth of Massachusetts or the United States of America except for those consents, approvals, licenses and authorizations already obtained and those filings, recordings and registrations already made.
(x) Neither the execution and delivery by the Trust of the Transaction Agreements nor the consummation by the Trust of the transactions contemplated thereby, including the issuance and sale of the Securities (i) violates the 1940 Act or the General Rules and Regulations under the 1940 Act (the “1940 Act Rules and Regulations”) or (ii) requires the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under the 1940 Act or the 1940 Act Rules and Regulations except for those consents, approvals, licenses and authorizations already obtained and those filings, recordings and registrations already made; provided, however, that in each case we do not express any opinion with respect to (A) the antifraud provisions of any of the foregoing or (B) the eligibility under the 1940 Act and the 1940 Act Rules and Regulations of The statements Bank of New York Mellon Corporation (formerly known as Mellon Trust of New England NA) to act as custodian for the Trust.
(xi) The provisions of the Declaration and the By-Laws do not violate the 1940 Act and the 1940 Act Rules and Regulations.
(xii) The Trust has an authorized capitalization as set forth in the Pricing Disclosure Package Preliminary Prospectus and the Prospectus Prospectus. The Securities have been duly authorized by all requisite statutory trust action on the part of the Trust under the caption “Description DSTA and, when duly entered into the stock record books of the Notes” insofar as these statements purport Trust and delivered to describe and paid for by the provisions Underwriters in accordance with the terms of the documents referred to thereinUnderwriting Agreement, constitute an accurate summary will be validly issued, fully paid and nonassessable and free and clear of any preemptive rights or any similar rights arising under the matters set forth therein in all material respects; andDSTA, the Organizational Documents or any Scheduled Contract.
(vxiii) The statements set forth in the Pricing Disclosure Package Preliminary Prospectus and the Prospectus under the captions “United States Federal Tax Consequences to Holders Description of Notesthe Shares” and “Employee Retirement Income Security Act,Anti-Takeover Provisions of the Fund’s Governing Documents” insofar as they such statements purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries summarize certain provisions of the matters set forth therein Organizational Documents fairly summarize such provisions in all material respects.
(cxiv) To our knowledge, there are no legal or governmental proceedings pending to which the Trust is a party that are required to be disclosed in the Prospectus pursuant to Item 12 of Form N-2 under the Securities Act and the 1940 Act that are not so disclosed therein, and no contract or other document is required to be described in the Prospectus or to be filed as an exhibit to the Registration Statement that is not described therein or filed as required.
(xv) The filing of the Prospectus pursuant to Rule 497 under the Securities Act Rules and Regulations has been made in the manner and within the time period required by Rule 497 of the Securities Act Rules and Regulations.
(xvi) No person has any right under the Trust’s Certificate of Trust, the Declaration, the By-Laws, the DSTA or under any Scheduled Contract to cause the Company shall have furnished to register under the Securities Act any shares of securities or to include any such securities in the Registration Statement or the offering contemplated thereby.
(xvii) Based upon and subject to the Underwriters an foregoing, we are of the opinion that under current U.S. federal income tax law, although the discussion set forth in the Prospectus under the headings “Taxation” does not purport to discuss all possible U.S. federal income tax consequences of the purchase, ownership or disposition of the Securities, such discussion constitutes, in all material respects, a fair and accurate summary of the U.S. federal income tax consequences that are anticipated to be material to holders who purchase the Securities in the offering described in the Prospectus, subject to the qualifications set forth in such discussion. In rendering such opinion, dated such counsel may rely as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Fund and public officials. References to the Final Prospectus in this paragraph (b) shall also include any supplements thereto at the Closing Date, .
(c) You shall have received on the Closing Date an opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel of counsel to the CompanyAdviser, dated the Closing Date and addressed to the Representatives, to the effect that:
(i) The Company Investment Adviser has been duly incorporated organized and is validly existing as a corporation limited liability company, is in good standing under the laws of the State of GeorgiaNew York, and is duly registered as a bank holding company under has the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties property and to conduct its business as described in the Registration Statement, the Base Prospectus, each Preliminary Final Prospectus and the Final Prospectus. To my knowledge, the nature of the Investment Adviser’s business operations does not require it to register to conduct its business in any jurisdiction in which it is not currently registered;
(ii) The Company has Investment Adviser is registered with the Commission as an authorized capitalization investment adviser under the Advisers Act, and is not prohibited by the Advisers Act, the 1940 Act or the rules and regulations of the Commission under the Advisers Act from acting under the Management Agreement as set forth in contemplated by the Registration Statement, the Base Prospectus, each Preliminary Final Prospectus and the Final Prospectus, and all no order of suspension or revocation of such registration has been issued or proceedings therefore initiated or, to my knowledge, threatened by the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessableCommission;
(iii) The Company Investment Adviser has the limited liability company power and authority to enter into the Underwriting Agreement and the Management Agreement, and the Underwriting Agreement has been duly qualified as a foreign corporation for authorized, executed and delivered by the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdictionInvestment Adviser;
(iv) SunTrust Bank The Management Agreement has been duly incorporated authorized, executed and delivered by the Adviser and the Management Agreement is validly existing as a corporation in good standing under the laws valid and legally binding agreement of the State of Georgia; Adviser, assuming due authorization, execution and except as set forth delivery by the other parties thereto, enforceable against the Adviser in accordance with its terms subject to the Prospectus, all qualification that the enforceability of the issued shares of capital stock of SunTrust Bank are owned directly Adviser’s obligations thereunder may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or indirectly affecting creditors’ rights generally and by the Company, free and clear of all liens, encumbrances, equities or claimsgeneral equitable principles;
(v) To such counsel’s knowledge The Management Agreement contains the provisions required by Section 205 of the Advisers Act and other than Section 15 of the 1940 Act and is enforceable against the Investment Adviser in accordance with its terms;
(vi) The execution and delivery by the Investment Adviser of, and the performance by the Investment Adviser of its obligations under, the Management Agreement and the Underwriting Agreement will not contravene the Certificate of Formation and the Amended and Restated Operating Agreement of the Investment Adviser (each as set forth currently in effect) or, to my knowledge, any agreement binding on the Investment Adviser or any judgment, order or decree of any U.S. federal or state governmental body, agency or court having jurisdiction over the Investment Adviser;
(vii) The description of the Investment Adviser in the Registration Statement, the Base Prospectus, each Preliminary Final Prospectus and the Final Prospectus complies in all material respects to the applicable requirements of the 1933 Act, the 1940 Act and the 1940 Act Rules and Regulations;
(viii) To my knowledge, there are no legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries Investment Adviser is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets properties of the Company or SunTrust Bank Investment Adviser is subject, nor will such actions subject that is expected to result in any violation a Material Adverse Effect on the Investment Adviser or impair the ability of the provisions of Investment Adviser to act as the Restated Certificate of Incorporationinvestment adviser for the Fund or that are required to be described in the Registration Statement, as amended, or By-laws of the Company Preliminary Prospectus or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesProspectus and are not so described;
(viiix) No consent, approval, authorization, order, registration or qualification of or filing with any U.S. federal or New York governmental authority or, to my knowledge, any court or governmental agency or body is required for the issuance performance by the Investment Adviser of the Management Agreement and the Underwriting Agreement, except (a) as have been made or obtained and are in full force and effect under the 1933 Act, 1934 Act, the 1940 Act, the Advisers Act or the rules of the NYSE MKT, or (b) as may be required (i) by the rules of the Financial Industry Regulatory Authority, Inc., or (ii) under the securities or “blue sky” laws of any jurisdiction in the United States in connection with the offer and sale of the Notes or the consummation by the Company of the transactions contemplated by this AgreementSecurities, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, each case as to which such counsel need I express no opinion) comply as ; and In addition to form in all material respects with the requirements above opinions, nothing has come to my attention that has caused me to believe that the description of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained Investment Adviser in the Registration Statement, at the Pricing Disclosure Package or the Prospectus, time such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective dateStatement became effective, contained an any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) , or that the Pricing Disclosure Packagedescription of the Investment Adviser in the Final Prospectus, as of its date and the date hereof contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In addition, nothing has come to my attention that has caused me to believe that the description of the Investment Adviser in the Preliminary Final Prospectus, as of the Applicable Time, contained an any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above. In rendering such opinion, such counsel need not express a belief with respect may rely as to matters of fact, to the financial statements extent they deem proper, on certificates of responsible officers of the Adviser and related schedules and other financial information contained therein, and with respect public officials. References to clause the Final Prospectus in this paragraph (ic) above, such counsel need not express a belief with respect to shall also include any Form T-1supplements thereto at the Closing Date.
(d) The Underwriters Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to such the issuance and sale of the Securities, the Registration Statement, the Basic Prospectus, the Preliminary Final Prospectus and the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriters Representatives may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion Fund and the Adviser shall have furnished to such counsel such documents as they request for the purpose of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant enabling them to Section 6(b) and 6(c), respectivelypass upon such matters.
(e) At Each of the Applicable Time Fund and at the Time of Delivery, Ernst & Young LLP Adviser shall have furnished to you the Representatives a letter or letterscertificate, dated signed by the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form Chairman of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering Board or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package President or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.Executive V
Appears in 1 contract
Sources: Underwriting Agreement (GAMCO Global Gold, Natural Resources & Income Trust by Gabelli)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an you their written opinion, dated the Closing Date, in substantially the form of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Annex I hereto.
(c) The General Counsel of the CompanyCompany and the Senior Vice President and Deputy General Counsel for Wholesale Banking, to the effect that:
(i) The Company has been duly incorporated Procurement Contracting and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock Corporate Real Estate of the Company shall have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for furnished to you their written opinion, dated the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements thereinClosing Date, in substantially the light form of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1Annex II hereto.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities entity and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ LLP, delivered pursuant to Section 6(b) ), and the opinion of the General Counsel of the Company and the Senior Vice President and Deputy General Counsel for Wholesale Banking, Procurement Contracting and Corporate Real Estate of the Company, delivered pursuant to 6(c), respectively.
(e) At the Applicable Time and at the Time of DeliveryClosing Date, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the effect set forth financial statements and certain financial information contained or incorporated by reference in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, the Pricing Disclosure Package and as of the Time of Delivery, is attached as Annex I(b))Prospectus.
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(ih) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(ji) The Company shall have furnished or caused to be furnished to you at the Time of Delivery Closing Date certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Normal WITS shall be subject to the accuracy of the representations and warranties on the part of each of the Company Guarantor and the Trust contained herein as of the Applicable Time, the date hereof and the Closing Date, to the accuracy of the statements of the Company Guarantor and the Trust made in any certificates pursuant to the provisions hereof, to the performance by each of the Company Guarantor and the Trust of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company Guarantor or the Trust pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfactionwith.
(b) King & Spalding LLP, counsel for the Company, The Guarantor shall have furnished to the Underwriters an opinion or opinionsRepresentatives a certificate, dated the Closing Date, of the Guarantor, signed by the principal financial or accounting officer of the Guarantor, to the effect that, to the best of his knowledge after reasonable investigation:
(i) This The representations and warranties of the Guarantor in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Guarantor has been duly authorizedcomplied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, executed and delivered by the Companyin all material respects;
(ii) The Indenture No stop order suspending the effectiveness of the Registration Statement or any part thereof or suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus has been duly issued and validly authorized, executed no proceedings for that purpose have been instituted and delivered by the Company and constitutes a valid and binding agreement are pending or have been threatened as of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Actsuch date;
(iii) The issuance, execution and delivery Since the date of the Notes have most recent financial statements included or incorporated by reference in the Pricing Prospectus, there has been duly no material adverse change in the financial position, results of operations, cash flows or prospects relating thereto of the Guarantor and validly authorized its subsidiaries consolidated, except as set forth in or contemplated by the Company Prospectus; and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth On or after the Applicable Time, (A) no downgrading has occurred in the Pricing Disclosure Package rating accorded the Guarantor’s unsecured debt securities or preferred stock as described in Section 6(l)(i), and (B) no announcement has been made with respect to any rating accorded the Guarantor’s unsecured debt securities or preferred stock or the Normal WITS as described in Section 6(l)(ii).
(c) The Trust shall have furnished to the Representatives a certificate, dated the Closing Date, of the Trust, signed by an Administrative Trustee of the Trust, to the effect that, to the best of such Trustee’s knowledge after reasonable investigation:
(i) The representations and warranties of the Trust in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Prospectus under Trust has complied with all the caption “Description of agreements and satisfied all the Notes” insofar as these statements purport conditions on its part to describe be performed or satisfied at or prior to the provisions of the documents referred to thereinClosing Date, constitute an accurate summary of the matters set forth therein in all material respects; and
(vii) The statements set forth in No stop order suspending the Pricing Disclosure Package and effectiveness of the Registration Statement or any part thereof or suspending or preventing the use of the Prospectus under the captions “United States Federal Tax Consequences to Holders or any Issuer Free Writing Prospectus has been issued and no proceedings for that purpose have been instituted and are pending or have been threatened as of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respectssuch date.
(cd) The Company Guarantor shall have furnished to the Underwriters an the opinion, dated the Closing Date, of ▇▇▇▇R▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq., Senior Vice President and Deputy General Counsel of the CompanyGuarantor, to the effect that:
(i) The Company Guarantor has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amendedNorth Carolina, with corporate power and authority under such laws to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth Junior Subordinated Notes have been duly authorized, executed, issued and delivered and, assuming authentication by the Indenture Trustee in the manner contemplated in its certificate, constitute valid and legally binding obligations of the Guarantor entitled to the benefits provided by the Indenture; and the Junior Subordinated Notes and the Indenture conform in all material respects to the descriptions thereof in the Prospectus;
(iii) The Indenture has been duly authorized, executed and all delivered by the Guarantor, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding obligation of the issued Guarantor enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(iv) The Guarantee has been duly authorized, executed and delivered by the Guarantor, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding obligation of the Guarantor enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and the Guarantee conforms in all material respects to the designation thereof in the Prospectus;
(v) The Trust Agreement has been duly authorized, executed and delivered by the Guarantor, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding obligation of the Guarantor enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and the Trust Agreement conforms in all material respects to the designation thereof in the Prospectus;
(vi) Each of the Stock Purchase Contract Agreement, the Collateral Agreement and the Remarketing Agreement has been duly authorized, executed and delivered by the Guarantor and constitutes a valid and legally binding obligation of the Guarantor enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and each such Agreement conforms in all material respects to the description thereof in the Prospectus;
(vii) This Agreement has been duly authorized, executed and delivered by the Guarantor;
(viii) The issuance by the Guarantor of Preferred Stock pursuant to the Stock Purchase Contract Agreement and the Guarantor’s articles of incorporation, as amended, has been duly authorized and, when certificates evidencing the shares of capital stock of the Company Preferred Stock have been duly executed by the Guarantor and authenticated by the Guarantor’s transfer agent in the manner contemplated by the Stock Purchase Contract Agreement and delivered on the Stock Purchase Date, such shares will be validly authorized and issued and are issued, fully paid and non-assessable; and the Preferred Stock when issued will conform in all material respects to the description thereof in the Prospectus;
(iiiix) The Company Guarantor has (or, with respect to the Indenture, had) all corporate power and authority necessary to execute and deliver the Guarantor Transaction Agreements and the Remarketing Agreement, and has all such power and authority to perform its obligations thereunder (including issuing Preferred Stock pursuant to the Stock Purchase Contract Agreement); this Agreement has been duly qualified as a foreign corporation for authorized, executed and delivered by the transaction Guarantor; the execution, delivery and performance of business this Agreement, the Indenture, the Junior Subordinated Notes, the Other Guarantor Transaction Agreements and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as Remarketing Agreement by the Guarantor and compliance with the provisions hereof and thereof by the Guarantor will not (or, with respect to require such qualification or is subject to no material liability or disability by reason the execution and delivery of the failure to be so qualified in any such jurisdiction;
(ivIndenture and the Other Guarantor Transaction Agreements, did not) SunTrust Bank has been duly incorporated and is validly existing as constitute a corporation in good standing under breach of, or default under, the corporate charter or by-laws of the State Guarantor, or any material agreement, indenture or other instrument relating to indebtedness for money borrowed known to such counsel to which the Guarantor is a party, or, to the best of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth knowledge, any law, order, rule, regulation or decree of any court, governmental agency or authority located in the Prospectus, there are no legal United States having jurisdiction over the Guarantor or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company Guarantor, which breach or any of its subsidiaries is the subject which is default would be reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company Guarantor and its subsidiaries, subsidiaries taken as a whole; and, to the best of such counsel’s knowledge, no such proceedings are threatened consent, authorization or contemplated by order of, or filing or registration with, any court or governmental authorities or threatened by others;
agency is (vi) The or, with respect to the execution and delivery of the Indenture, was) required for the execution, delivery and performance of this Agreement, the issuance and sale of Indenture, the Junior Subordinated Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Other Guarantor Transaction Agreements or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation Remarketing Agreement by the Company of the transactions contemplated by this AgreementGuarantor, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under applicable state securities or Blue Sky “blue sky” laws in connection with the purchase and distribution of the Notes by the Underwritersor as have been duly made or obtained;
(viiix) The Company is not andNormal WITS have been duly authorized by the Guarantor as Depositor on behalf of the Trust, after giving effect and the Normal WITS conform in all material respects to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined description thereof in the Investment Company Act of 1940, as amended;Prospectus; and
(ixxi) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company Guarantor prior to the Time of Delivery Closing Date (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statementtherein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need does not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package Prospectus or the Prospectus, such counsel shall confirm that except for those referred to in the opinion in paragraphs (ii), (iv), (vi) and (viii) of this Section 6(d), he has no reason to believe that:
(1i) each that any part of the Registration StatementStatement or any further amendment thereto made by the Guarantor or the Trust prior to the Closing Date (other than the financial statements and other financial data contained therein, as of its effective dateto which such counsel need express no opinion), when such part or amendment became effective, contained 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;
; (2ii) that the Pricing Disclosure Package, as of the Applicable Time, contained an any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
; or (3iii) the Prospectusthat, as of its date and as of the date hereofClosing Date, the Prospectus or any further amendment or supplement thereto made by the Guarantor or the Trust prior to the Closing Date (other than the financial statements and other financial data contained therein, as to which such counsel need express no opinion) contained or contains an untrue statement of a material fact or omitted or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) and such counsel does not know of any amendment to the Registration Statement is required to be filed or that there are of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement Statement, the Effective Date Prospectus or the Prospectus which that are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such . Such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, the Guarantee Trustee, the Property Trustee or the Collateral Agent, upon the certificate or certificates of such entities and entity, (ii) as to matters governed by Georgia LawNew York law, upon the opinion of King & Spalding LLP and the opinion of Cadwalader, W▇▇▇▇▇▇▇▇▇ & T▇. ▇▇ LLP, delivered pursuant to Section 6(e), and (iii) as to matters governed by Delaware law, upon the opinion of R▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., delivered pursuant to Section 6(b) and 6(c6(f), respectively.
(e) At Cadwalader, W▇▇▇▇▇▇▇▇▇ & T▇▇▇ LLP, special counsel to the Applicable Time and at the Time of DeliveryGuarantor, Ernst & Young LLP shall have furnished to you a letter or lettersthe Underwriters an opinion, dated the respective dates of delivery thereof, in form and substance satisfactory to youClosing Date, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).that:
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not The Junior Subordinated Notes have been any change in duly authorized and executed by the capital stock or long-term debt of Guarantor and, when the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting Junior Subordinated Notes have been duly authenticated and delivered by the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and Indenture Trustee in the manner contemplated in the Pricing Disclosure Package or Indenture and paid for by the ProspectusTrust, the Junior Subordinated Notes will be legal, valid and binding obligations of the Guarantor and entitled to the benefits provided by the Indenture.
(gii) Each of the Underwriting Agreement, the Indenture, the Guarantee, the Trust Agreement, the Stock Purchase Contract Agreement and the Collateral Agreement have been duly authorized, executed and delivered by the Guarantor and the Remarketing Agreement has been duly authorized by the Guarantor.
(iii) Each of the Indenture, the Guarantee, the Trust Agreement, the Stock Purchase Contract Agreement and the Collateral Agreement constitutes a legal, valid and binding agreement of the Guarantor, enforceable against the Guarantor in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, receivership or other laws relating to or affecting creditors’ rights generally, and to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity), and except that the enforcement of rights with respect to indemnification and contribution obligations, and provisions (a) purporting to waive or limit rights to trial by jury, oral amendments to written agreements or rights of set-off, or (b) relating to submission to jurisdiction, venue or service of process, may be limited by applicable law or considerations of public policy.
(iv) The Company shall have complied compliance by the Guarantor with the provisions of the first sentence Underwriting Agreement, the Indenture, the Junior Subordinated Notes, the Guarantee, the Trust Agreement, the Stock Purchase Contract Agreement, the Collateral Agreement and the Remarketing Agreement, and the consummation by the Company of Section 5(A)(dthe transactions therein contemplated, (a) hereof with respect do not require any Governmental Approval to the furnishing of prospectuses be obtained on the business day next succeeding part of the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt Guarantor, except those that may be required under state securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by blue sky laws, the Commission for purposes National Association of Rule 436(g)(2) under the ActSecurities Dealers, and (ii) no such organization shall have publicly announced that it has under surveillanceInc., outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; Exchange and such other approvals that have been obtained and, to our knowledge, are in effect, (iib) do not result in a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence violation of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as Applicable Laws applicable to the accuracy of the representations Guarantor, and warranties of the Company herein at and as of such time(c) do not breach or result in a violation of, as or default under, any judgment, decree or order known to us that is applicable to the performance Guarantor and, pursuant to any Applicable Laws, is issued by any Governmental Authority having jurisdiction over the Company of all of Guarantor or its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections properties (a) and (f) of this Section and as to such other matters as you may reasonably request.it being understood that we express no
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Republic made in any certificates pursuant to the provisions hereof, to the performance by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; and the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfactionthis Agreement.
(b) King & Spalding LLP, counsel for The Head or Acting Head of the Company, Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Underwriters an opinion or opinionsRepresentatives such counsel’s written opinion, dated the Closing Date, to the effect that:
(i) This Agreement The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly Republic and validly authorizedthe Agreements constitute legal, executed and delivered by the Company and constitutes a valid and binding agreement obligations of the Company, Republic enforceable in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iiiiv) The issuance, execution and delivery of the Notes Securities have been duly and validly authorized by the Company and, when authenticated by the Indenture Trusteeauthorized, executed, issued and delivered by the Republic in accordance with the manner provided in Fiscal Agency Agreement, and, assuming due authentication and delivery by the Indenture will Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and Republic enforceable against the Company in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries Securities) of the matters set forth therein Republic that will rank equal in right of payment with all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel other present and future unsecured and unsubordinated External Indebtedness of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersRepublic;
(vi) The There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of this Agreementany of the Agreements, the issuance and sale issue of the Notes, and the consummation of the transactions and performance of the obligations Securities as contemplated herein and therein contemplated will not conflict with in the Prospectus, or result in a breach the performance or violation observance by the Republic of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Agreements or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesSecurities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the issuance due execution, delivery and sale performance by the Republic of any of the Notes Agreements or the consummation Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Decree No. 2681 of December 29, 1993, (VI) authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meetings held on February 17, 2004 (VII) Resolution No. 2400 dated September 10, 2004 of the Ministerio de Hacienda y Crédito Público and Resolution No. 2895 dated November 4, 2004 of the Ministerio de Hacienda y Crédito Público, (VIII) approval No. 3262 dated January 9, 2004 of the CONPES, and (X) External Resolution No. 7 of November 14, 2003, issued by the Company Board of Directors of the transactions contemplated by this Agreement, except Central Bank (each of which shall be listed in such as have been obtained under counsel’s written opinion and copies of which shall be furnished to counsel to the Act and such consents, approvals, authorizations, registrations Underwriters on or qualifications as may be required under state securities or Blue Sky laws in connection with prior to the purchase and distribution of the Notes by the UnderwritersClosing Date);
(viii) The Company To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not andnecessary that any Agreement or the Securities be registered, after giving effect recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 2400 of September 10, 2004 and Resolution No. 2895 dated November 4, 2004, issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) a summary of the Agreements in the Diario Unico de Contratación Pública of the Republic, to satisfy the requirement for such publications, (B) notice of the external indebtedness represented by the Securities to the offering Banco de la República and sale (C) in accordance with External Resolution No. 7 of November 14, 2003, issued by the Junta Directiva del Banco de la República, the delivery of written information from the Director General of Public Credit of the Notes and Ministerio de Hacienda y Crédito Público to the application Junta Directiva del Banco de la República regarding the proposed issuance of the proceeds thereofSecurities, will not each of which shall be an “investment company,” as such term is defined in effected on or prior to the Investment Company Act of 1940, as amendedClosing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that, the Securities are held by a non-resident and non-domiciliary of the Republic.
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process; provided, that, except as provided under Article 177 of the Código Contencioso Administrativo, which does not override Articles 684 or 513 of the Código de Procedimiento Civil of the Republic, the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 15 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 14 hereof, Section 17 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur”, subject to the provisions of Article 693 of the Código de Procedimiento Civil which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic and subject to compliance with the provisions of Article 694 of the Código de Procedimiento Civil. The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus and any further amendments and supplements theretoProspectus, as applicableamended or supplemented, made and their filing with the Commission have been duly authorized by and on behalf of the Company prior to the Time of Delivery (other than the financial statements Republic, and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements amended, has been duly executed by and on behalf of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicableRepublic, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained information in the Registration Statement, the Pricing Disclosure Package or as amended, and the Prospectus, such counsel shall confirm that he as amended or supplemented, stated on the authority of public officials of the Republic has no reason to believe that:been stated in their official capacities thereunto duly authorized;
(1xvii) each part of The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of its effective dateColombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Registration Statement, at the time it became effective, contained 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;; and
(2B) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted No information has come to state any material fact necessary in order such counsel’s attention that causes such counsel to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) believe that the Prospectus, as of its date and as of the date hereofthereof or on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Prospectus (4) any amendment except to the Registration Statement extent expressly set forth in (xvii) above) and that such counsel makes no representation that such counsel has independently verified the accuracy, completeness and fairness of such statements (except as aforesaid), and that such counsel’s opinions referred to in this subsection (b) are limited to matters of Colombian law and, insofar as the opinion required by this subsection (b) is affected by matters of United States or New York law, it may be given in reliance upon the opinion required to be filed or that there are any contracts or other documents by subsection (c) of a character required to be filed this Section 6 and that, insofar as an exhibit the foregoing opinions relate to the Registration Statement legality, validity, binding effect or required to be incorporated by reference into enforceability of any agreement or obligation of the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) aboveRepublic, such counsel need not express a belief with respect has assumed that each party to such agreement or obligation other than the Republic has satisfied those legal requirements that are applicable to it to the financial statements and related schedules and other financial information contained therein, and with respect extent necessary to clause (i) above, make such counsel need not express a belief with respect to any Form T-1agreement or obligation enforceable against it.
(d▇) The Underwriters shall have received from ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP▇, United States counsel for to the UnderwritersRepublic, such opinion or opinionsshall have furnished to the Representatives their written opinion, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.that:
(i) On or after Assuming that the Applicable Time there shall not Securities have occurred any been duly authorized, executed, authenticated, issued and delivered against payment therefor, the Securities constitute valid, binding and enforceable obligations of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financialRepublic, political or economic conditions in the United States or elsewheresubject to applicable bankruptcy, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms insolvency and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.similar laws affecting
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable TimeTime of Sale, the date hereof Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus Final Prospectus, and any supplement thereto, shall have been filed with in the Commission pursuant to manner and within the time period required by Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof); the final term sheet contemplated by Section 5(A)(a5(b) hereofhereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any part thereof notice by the Commission objecting to its use shall have been issued and no proceeding proceedings for that purpose shall have been initiated instituted or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfactionthreatened.
(b) King ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Spalding ▇▇▇▇▇▇▇▇▇, LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinionsRepresentatives its opinion, dated the Closing DateDate and addressed to the Representatives, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated organized and is validly existing subsisting as a corporation in good standing limited liability company under the laws of the State Commonwealth of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amendedPennsylvania, with full corporate power and authority under its operating agreement to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
(ii) The Ventures is the only member of the Company has an authorized capitalization as set forth in the Prospectus, and owns all of the issued shares Company’s outstanding limited liability company interests;
(iii) Exelon is the only member of capital stock Ventures and owns all of Venture’s outstanding limited liability company interests;
(iv) the Indenture is in due and proper form, has been duly and validly authorized by the necessary corporate action and has been qualified under the Trust Indenture Act, and no other authorization, approval, consent, certificate or order of any state commission or regulatory authority or of any other federal commission or regulatory authority is required in respect of the execution and delivery of the Indenture; the Indenture has been duly and validly executed and delivered and is a valid and enforceable instrument in accordance with its terms except as the enforceability thereof may be limited by (1) bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws of general applicability relating or affecting the creditors’ rights, and (2) general equitable principles, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing;
(v) the Securities are in due and proper form and have been duly executed and delivered by the duly authorized officers of the Company; the issue and sale of the Securities by the Company in accordance with the terms of this Agreement have been duly and validly authorized by the necessary corporate action, no authorization, approval, consent, certificate or order of any state commission or regulatory authority or of any federal commission or regulatory authority having been required in respect of such issue and issued sale except for the authorization of FERC, which authorization has been received by the Company and are fully paid is in full force and non-assessableeffect; the Securities, when duly authenticated and delivered to the Underwriters against payment of the agreed consideration therefor, will be valid and enforceable obligations of the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or similar laws of general applicability relating to or affecting creditors’ rights and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing;
(iiivi) The Company has been duly qualified as a foreign corporation for to the transaction knowledge of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no pending legal or governmental proceedings pending to which the Company or any of its subsidiaries subsidiary is a party or of and which are required to be set forth in the documents incorporated by reference in the Registration Statement and Final Prospectus other than those referred to in such documents; and the statements in any property Preliminary Prospectus and the Final Prospectus under the headings “Description of the Company or any of its subsidiaries is Senior Notes” and “Certain United States Federal Income Tax Considerations” fairly summarize the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and matters therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesdescribed;
(vii) No consent, approval, authorization, order, registration or qualification of or with the Registration Statement has become effective under the Act; any court or governmental agency or body is required for the issuance and sale filing of the Notes or the consummation by the Company of the transactions contemplated by this AgreementBase Prospectus, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes any Preliminary Prospectus and the application of the proceeds thereofFinal Prospectus, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicablepursuant 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, made no stop order suspending the effectiveness of the Registration Statement or any notice by the Company prior Commission objecting to its use has been issued, no proceedings for that purpose have been instituted or threatened, and the Time of Delivery Registration Statement and the Final Prospectus (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statementtherein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of that on the Effective Date the Registration Statement, as of its effective date, Statement contained an any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleadingmisleading or that the Final Prospectus as of its date and on the Closing Date included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion);
(2viii) such counsel has no reason to believe that the Pricing Disclosure Package, as of the Applicable TimeTime of Sale, contained an any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
misleading (3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion);
(ix) this Agreement has been duly authorized, executed and delivered by the Company;
(x) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus, will not be required to register as an “investment company” under the Investment Company Act of 1940, as amended;
(xi) no consent, approval, authorization, filing with respect or order of any court or state or federal governmental agency or body is required in connection with the transactions contemplated herein or in the Indenture, except such as have been obtained under the Act, the Trust Indenture Act and such as may be required under the blue sky or securities laws of any jurisdiction in connection with the purchase and sale of the Securities by the Underwriters in the manner contemplated in this Agreement and the Final Prospectus and such other approvals (specified in such opinion) as have been obtained; and
(xii) neither the execution and delivery of this Agreement or the Indenture, nor the consummation of any other of the transactions herein contemplated, nor the fulfillment of the terms hereof or thereof will contravene, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or asset of the Company pursuant to clause (i) abovethe operating agreement of the Company or the charter, bylaws or other organizational instrument or document of the Company’s subsidiaries, as the case may be; (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company is a party or bound or to which its property is subject that is listed in the Exhibit Index to the Company’s Form 10-K for the fiscal year ended December 31, 2006, Forms 10-Q for the fiscal quarters ended March 31, 2007 and June 30, 2007 and Forms 8-K filed with the Commission during the period between January 1, 2007 and the Closing Date; or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its properties. In rendering such opinion, such counsel need not express a belief with respect may rely (A) as to matters involving the application of laws of any Form T-1jurisdiction other than the Commonwealth of Pennsylvania or the Federal laws of 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 Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(dc) The Underwriters Representatives shall have received from ▇▇▇▇▇▇▇▇ Winston & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to such the issuance and sale of the Securities, the Indenture, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriters Representatives may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP Company shall have furnished to you such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a letter certificate of the Company, signed by the Chairman of the Board or lettersthe President and the principal financial or accounting officer of the Company, dated the respective dates of delivery thereof, in form and substance satisfactory to youClosing Date, to the effect set forth in Annex I (a form that the signers of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendment or supplement thereto and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Time of Delivery, is attached Closing Date with the same effect as Annex I(b)).if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(fii) Neither no stop order suspending the Company nor effectiveness of the Registration Statement or any of notice by the Commission objecting to its Significant Subsidiaries shall use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iiii) sustained since the date of the latest audited most recent financial statements included or incorporated by reference in the Pricing Disclosure Package and the Final Prospectus (exclusive of any loss supplement thereto), there has been no material adverse effect on the financial condition, business or interference with properties of the Company and its business from firesubsidiaries, explosion, flood or other calamitytaken as a whole, whether or not covered by insurancearising from transactions in the ordinary course of business, or from any labor dispute or court or governmental action, order or decree, otherwise than except as set forth in or contemplated in the Pricing ProspectusDisclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives.
(iif) since Subsequent to the respective Execution Time or, if earlier, the dates as of which information is given in the Pricing Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the capital stock letter or long-term debt letters referred to in paragraph (e) of the Company this Section 6 or any of its subsidiaries or (ii) any change, or any development involving a prospective change, in or affecting the general affairsfinancial condition, management, financial position, stockholders’ equity business or results of operations properties of the Company and its subsidiaries, otherwise than taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Pricing Prospectus, Disclosure Package or the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any such case described referred to in clause (i) or (ii)) above, is is, in the sole judgment of the Representatives Representatives, so material and adverse as to make it impracticable impractical or inadvisable to proceed with the public offering or the delivery of the Notes on Securities as contemplated by the terms and in Registration Statement (exclusive of any amendment thereof), the manner contemplated in the Pricing Disclosure Package and the Final Prospectus (exclusive of any amendment or the Prospectussupplement thereto).
(g) The On the Closing Date, (i) the Securities shall be rated “A3” by ▇▇▇▇▇’▇ Investors Service, Inc., “BBB+” by Standard & Poor’s Ratings Services and “BBB+” by Fitch, Inc., respectively, and the Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect delivered to the furnishing of prospectuses on Representatives evidence satisfactory to the business day next succeeding Representatives confirming that the date of this Agreement.
Securities have such ratings, and (hii) On or after since the Applicable Time (i) no downgrading Execution Time, there shall not have occurred a downgrading in the rating accorded assigned to the Securities or any of the Company’s debt securities or preferred stock commercial paper by any “nationally recognized statistical rating organizationagency,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization securities rating agency shall have publicly announced that it has under surveillance, outlook, watch surveillance or review, with possible negative implications, its rating of the Securities or any of the Company’s other debt securities or preferred stocksecurities.
(ih) On or after Prior to the Applicable Time there shall not have occurred any of Closing Date, the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of Representatives such further information, certificates and documents as the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you Representatives may reasonably request. If any of the conditions specified in this Section 6 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 Representatives and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 will be delivered at the office of counsel for the Company, at ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on the Closing Date.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable TimeTime of Sale, the date hereof Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus Final Prospectus, and any supplement thereto, shall have been filed with in the Commission pursuant to manner and within the time period required by Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof); the final term sheet contemplated by Section 5(A)(a5(b) hereofhereto, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any part thereof notice by the Commission objecting to its use shall have been issued and no proceeding proceedings for that purpose shall have been initiated instituted or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfactionthreatened.
(b) King & Spalding ▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinionsRepresentatives its opinion, dated the Closing DateDate and addressed to the Representatives, to the effect that:
(i) This Agreement the Company has been duly authorizedorganized and is validly subsisting as a corporation under the laws of the Commonwealth of Pennsylvania, executed with full corporate power and delivered by authority under its articles of incorporation to own or lease, as the Companycase may be, and to operate its properties and conduct its business as described in the Disclosure Package and the Final Prospectus;
(ii) The Indenture has been duly the Securities are in due and validly authorized, executed proper form; the issue and delivered sale of the Securities by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement the terms of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes this Agreement have been duly and validly authorized by all necessary corporate action on the part of the Company and by orders duly entered by the Pennsylvania Public Utility Commission. The Securities have been duly executed and delivered by the duly authorized officers of the Company and, when authenticated and delivered by the Indenture TrusteeTrustee against payment therefor, executed, issued and delivered in the manner provided in the Indenture will constitute legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as their terms subject to enforcement (1) the effect of remedies, to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and conveyance, fraudulent transfer, marshalling or similar laws affecting the creditors’ rights and remedies of creditors generally, generally and the effects of (2) general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether such enforceability is considered in a proceeding in equity or at law);
(iii) the Indenture has been duly authorized by all necessary corporate action on the part of the Company and has been duly executed and delivered by duly authorized officers of the Company. The Indenture constitutes a legal, valid and binding instrument, enforceable in accordance with its terms except as the enforceability thereof may be limited by (1) the effect of applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer, marshalling or similar laws affecting creditors’ rights and remedies generally and (2) general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing (regardless of whether such enforceability is considered in a proceeding in equity or at law). The Indenture has been duly qualified under the Trust Indenture Act;
(iv) The statements set forth in the Pricing Disclosure Package and Indenture constitutes a valid mortgage lien of record upon all real property presently owned by the Prospectus under the caption “Description of the Notes” insofar Company described therein as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished subject to the Underwriters an opinionlien thereof (other than properties expressly excepted therefrom, dated properties properly released from the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel lien thereof pursuant to the terms thereof and substantially all of the Company’s leaseholds), and the Securities are secured by a valid and, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing extent that it may be perfected by filing under the laws Uniform Commercial Code, a perfected security interest in such of the State personal property of Georgia, and the Company as is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
Indenture, whether such personal property is now owned or hereinafter acquired by the Company (ii) The Company has an authorized capitalization other than properties expressly excepted therefrom; properties released from the security interest created thereby; “proceeds” as set forth defined in the Prospectus, and all Uniform Commercial Code to the extent limited by the terms of Section 9-315 of the issued shares of capital stock Uniform Commercial Code; after-acquired property subject to Section 552 of the Company have been duly Federal Bankruptcy Code; property sold to a buyer in the ordinary course of business, licensed to a licensee in the ordinary course of business or leased to a lessee in the ordinary course of business; insurance policies (except to the extent that payments thereunder are “proceeds,” as defined in the Uniform Commercial Code); and validly authorized and issued and contract rights or general intangibles which by their terms, or by law, are fully paid and non-assessable;
(iii) The Company has been duly qualified not assignable); such counsel need express no opinion as a foreign corporation to any actions that may be required to be taken periodically under the Uniform Commercial Code or other applicable law in order for the transaction validity or perfection of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure security interest to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claimsmaintained;
(v) To this Agreement has been duly authorized, executed and delivered by the Company;
(vi) such counsel is not representing the Company in any pending litigation in which it is a named defendant, or in any litigation that is overtly threatened in writing against it by a potential claimant, that challenges the validity or enforceability of, or seeks to enjoin the performance of, the transactions contemplated by this Agreement, the Indenture and the Securities and, to the knowledge of such counsel’s knowledge and other than as set forth in the Prospectus, there are no material pending legal or governmental proceedings pending to which the Company or any of its subsidiaries subsidiary is a party or of and which are required to be set forth in the documents incorporated by reference in the Registration Statement and Final Prospectus other than those referred to in such documents; and the statements in any property Preliminary Prospectus and the Final Prospectus under the heading “Description of the Company or any of its subsidiaries is Bonds and First and Refunding Mortgage” fairly summarize the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and matters therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesdescribed;
(vii) the PAPUC has entered an appropriate order authorizing the Company to issue and sell the Securities as contemplated herein; such order is in full force and effect and, to the best of such counsel’s knowledge after due inquiry, no proceeding has been initiated upon appeal from or to review the effectiveness of such order. No other consent, approval, authorization, order, registration filing with or qualification order of or with any court or state or federal governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of in connection with the transactions contemplated by in this Agreement, the Indenture or the Securities, except such as have been obtained under the Act Act, the Trust Indenture Act, and from the PAPUC, and such consents, approvals, authorizations, registrations or qualifications as may be required under state the blue sky or securities or Blue Sky laws of any jurisdiction in connection with the purchase and distribution sale of the Notes Securities by the UnderwritersUnderwriters in the manner contemplated in this Agreement and the Final Prospectus and such other approvals (specified in such opinion) as have been obtained;
(viii) The Company is not and, after giving effect to the offering and sale Registration Statement has become effective under the Act; any required filing of the Notes Base Prospectus, any Preliminary Prospectus and the application of the proceeds thereofFinal Prospectus, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicablepursuant 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, made no stop order suspending the effectiveness of the Registration Statement or any notice by the Company prior Commission objecting to its use has been issued, no proceedings for that purpose have been instituted or threatened, and the Time of Delivery Registration Statement (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they as of the date the Registration Statement originally became effective or were filed under the Act, and together with the CommissionPreliminary Prospectus and the final Prospectus, as of each “new effective date” with respect to the Notes pursuant to and within the meaning of Rule 430B(f)(2) under the Act, complied, and the Preliminary Prospectus and the final Prospectus (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion), as of their respective dates, complied, and the final Prospectus (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion), as of the date hereof, complies, in each case may be, complied as to form in all material respects with the applicable requirements of the Act or Act, the Exchange ActAct and the Trust Indenture Act and the respective rules thereunder;
(ix) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Disclosure Package and the Final Prospectus, will not be required to register as an “investment company” under the Investment Company Act of 1940, as applicableamended;
(x) the execution and delivery of this Agreement, the Indenture and the Securities, the consummation of any other transactions contemplated by this Agreement, the Indenture and the Securities, and the rules and regulations fulfillment of the Commission thereunder. In additionterms hereof or thereof do not, although such counsel need not pass upon and the performance of the obligations hereunder and thereunder will not, (1) violate the articles of incorporation and bylaws of the Company; (2) violate any statute, law, rule, regulation, judgment, order or assume decree applicable to the Company or any responsibility of its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its subsidiaries or any of their properties; or (3) conflict with, breach or result in a default under the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or any of its subsidiaries is a party or bound or to which their property is subject that is listed in the Exhibit Index to the Company’s Form 10-K for the accuracyfiscal year ended December 31, completeness 2018, Forms 10-Q for the fiscal quarters ended March 31, 2019 and June 30, 2019 and Forms 8-K filed with the Commission during the period between January 1, 2019 and the Closing Date or fairness result in the creation or imposition of any security interest in or lien or encumbrance upon, any property or asset of the statements contained Company or any of its subsidiaries pursuant to any item referred to in this clause (3) (other than the Registration Statementlien of the Indenture);
(xi) the discussions in any Preliminary Prospectus and the Final Prospectus in each case under the caption “Certain United States Federal Income Tax Consequences” are fair and accurate summaries of the matters addressed therein, based upon current law and the Pricing Disclosure Package assumptions stated or the Prospectusreferred to therein, and such counsel shall confirm that he these discussions, to the extent they constitute matters of federal income tax law or legal conclusions with respect thereto, represent its opinion; and
(xii) such counsel has no reason to believe that:
that (1) each part of on the Effective Date, the Registration Statement, as of its effective date, Statement contained an any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
, (2) the Pricing Disclosure Package, as of the Applicable TimeTime of Sale, the Disclosure Package contained an any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
misleading or (3) the Prospectus, as of its date and as of on the date hereofClosing Date, contained the Final Prospectus included or contains an includes any untrue statement of a material fact or omitted or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
misleading (4) any amendment to the Registration Statement is required to be filed or that there are any contracts or in each case, other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to than the financial statements and related schedules and other financial information contained therein, and with respect as to clause (i) abovewhich such counsel need express no opinion); In rendering such opinion, such counsel need not express a belief with respect may rely (A) as to matters involving the application of laws of any Form T-1jurisdiction other than the Commonwealth of Pennsylvania or the Federal laws of 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 Underwriters and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date.
(dc) The Underwriters Representatives shall have received from ▇▇▇▇▇▇▇▇ Winston & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateDate and addressed to the Representatives, with respect to such the issuance and sale of the Securities, the Indenture, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Underwriters Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. ▇▇▇▇▇▇▇▇ In rendering such opinion, Winston & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trusteerely, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Lawthe laws of the State of Pennsylvania, upon the opinion of King & Spalding LLP and counsel for the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant Company referred to in Section 6(b) and 6(c), respectively.
(ed) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP The Company shall have furnished to you the Representatives a letter certificate of the Company, signed by the Chairman of the Board or lettersthe President and the principal financial or accounting officer of the Company, dated the respective dates of delivery thereof, in form and substance satisfactory to youClosing Date, to the effect set forth in Annex I (a form that the signers of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to such certificate have carefully examined the Registration Statement, the Disclosure Package, the Final Prospectus and any amendment or supplement thereto and that:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Time of Delivery, is attached Closing Date with the same effect as Annex I(b)).if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(fii) Neither no stop order suspending the Company nor effectiveness of the Registration Statement or any of notice by the Commission objecting to its Significant Subsidiaries shall use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and
(iiii) sustained since the date of the latest audited most recent financial statements included or incorporated by reference in the Pricing Disclosure Package and the Final Prospectus (exclusive of any loss or interference with its business from firesupplement thereto), explosionthere has been no Material Adverse Effect, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than except as set forth in or contemplated in the Pricing ProspectusDisclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(e) At the Execution Time and at the Closing Date, the Company shall have requested and caused PricewaterhouseCoopers LLP to furnish to the Representatives letters, dated respectively as of the Execution Time and as of the Closing Date, in form and substance satisfactory to the Representatives.
(iif) since Subsequent to the respective Execution Time or, if earlier, the dates as of which information is given in the Pricing Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement thereto), there shall not have been (i) any change or decrease specified in the capital stock letter or long-term debt letters referred to in paragraph (e) of the Company this Section 6 or any of its subsidiaries or (ii) any change, or any development involving a prospective change, in or affecting the general affairsfinancial condition, management, financial position, stockholders’ equity business or results of operations properties of the Company and its subsidiaries, otherwise than taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Pricing Prospectus, Disclosure Package or the Final Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any such case described referred to in clause (i) or (ii)) above, is is, in the sole judgment of the Representatives Representatives, so material and adverse as to make it impracticable impractical or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Firm Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof Closing Date and the any Option Closing DateDate pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Preliminary Final Prospectus shall and the Final Prospectus, and any supplement thereto, have been filed with in the Commission pursuant to manner and within the time period required by Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof); the final term sheet contemplated by Section 5(A)(a5(k) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and the Registration Statement is effective and no stop order suspending the effectiveness of the Registration Statement or any part thereof notice that would prevent its use shall have been issued and no proceeding proceedings for that purpose shall have been initiated instituted or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfactionthreatened.
(b) King & Spalding LLP, counsel for the Company, The Company shall have furnished to filed with the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement Registrar of Corporations of the Company, enforceable in accordance with its terms, subject, as to enforcement Republic of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generallyThe ▇▇▇▇▇▇▇▇ Islands, and the effects Registrar of general principles Corporations will have accepted, the Statement of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery Designation in respect of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respectsSeries H Preferred Shares.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of requested and caused ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇Coie LLP, General Counsel of United States counsel for the Company, to have furnished to the Representatives their opinion, dated the Closing Date or the Option Closing Date, as the case may be, and addressed to the Representatives, to the effect that:
(i) The Company Registration Statement became effective upon its filing with the Commission. To such counsel’s knowledge, no stop order suspending effectiveness of the Registration Statement has been duly incorporated and is validly existing as a corporation in good standing issued under the laws Act, and no proceedings for this purpose have been instituted or are pending or threatened by the Commission. Any required filing of the State of Georgia, Preliminary Final Prospectus and is duly registered as a bank holding company the Final Prospectus and any supplement thereto pursuant to Rule 424(b) under the Bank Holding Company Act has been made in the manner and within the time period required by Rule 424(b) (without reference to 424(b)(8)). Without independent verification of 1956the factual accuracy, completeness or fairness of any statements made in the Registration Statement, the Preliminary Final Prospectus and the Final Prospectus each (except for the financial statements and financial schedules and other financial information included therein, as amendedto which such counsel need express no opinion), with power appears on its face to be appropriately responsive in all material respects to the requirements of the Act and authority to own its properties the applicable rules and conduct its business as described in regulations of the ProspectusCommission thereunder;
(ii) The Company has an authorized capitalization as statements set forth in the Prospectus2015 Annual Report incorporated by reference into the Registration Statement, the Preliminary Final Prospectus and the Final Prospectus under the caption “Risk Factors—Tax Risks—We, Or Any Of Our Subsidiaries, May Become Subject To Income Tax In Jurisdictions In Which We Are Organized Or Operate, Including The United States, Canada And Hong Kong, Which Would Reduce Our Earnings And Potentially Cause Certain Shareholders To Be Subject To Tax In Such Jurisdictions,” and “Risk Factors—Tax Risks— U.S. Tax Authorities Could Treat Us As A “Passive Foreign Investment Company,” Which Could Have Adverse U.S. Federal Income Tax Consequences To U.S. Shareholders,” insofar as such statements summarize legal matters discussed therein, are, in all material respects, accurate summaries of such legal matters; and the description of the issued shares of capital stock statutes and regulations set forth in the Preliminary Final Prospectus and the Final Prospectus under the caption “Business—Environmental and Other Regulations—United States,” accurately describes in all material respects the portions of the Company have been duly statutes and validly authorized and issued and are fully paid and non-assessableregulations addressed thereby; provided, however, that such counsel need express no opinion with respect to any laws other than those of the United States;
(iii) The Company has been duly qualified as a foreign corporation for statements in the transaction of business Preliminary Final Prospectus and is in good standing the Final Prospectus under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason captions “Business—Taxation of the failure Company—United States Taxation” and “Material United States Federal Income Tax Considerations,” with respect to be so qualified legal matters or legal conclusions, in any all material respects, is an accurate discussion of the material U.S. federal income tax considerations addressed therein (we do not opine or comment on the representations and statements of fact of the Company included in such jurisdictiondiscussion.);
(iv) SunTrust Bank has been duly incorporated and is validly existing Insofar as a corporation in good standing under the laws matters of the State of Georgia; and except as set forth in the ProspectusUnited States Federal law are concerned, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To to such counsel’s knowledge and other than as set forth in the Prospectusknowledge, (i) there are no legal or governmental proceedings pending or threatened against the Company or to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of its properties is subject that are required to be described in the property Registration Statement, the Preliminary Final Prospectus and the Final Prospectus but are not so described as required and (ii) there are no agreements, contracts, indentures, leases or assets of other documents or instruments that are required to be described in the Company or SunTrust Bank is subjectRegistration Statement, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Preliminary Final Prospectus or the organizational documents of SunTrust Bank Final Prospectus or any statute to be filed as exhibits to the Registration Statement that are not described or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesfiled as required;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viiiv) The Company is not and, after giving effect to the offering and sale of the Notes Securities and immediately upon receipt of payment for the Securities, and the application of the proceeds thereofthereof as described in the Disclosure Package and the Final Prospectus, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ixvi) The All consents, approvals, authorizations or other orders of, or registrations or filings on the part of the Company with any United States federal governmental or regulatory authority required for the issuance of the Securities and the consummation of the transactions contemplated in this Agreement, the Preliminary Final Prospectus and the Final Prospectus have been made or obtained, or will be effective as of the date of the opinion;
(vii) Without independent verification of the factual accuracy, completeness or fairness of any statements made therein, the documents incorporated or deemed to be incorporated by reference into the Registration Statement, the Preliminary Final Prospectus and any further amendments and supplements theretothe Final Prospectus, when each became effective or was filed with the Commission, as applicablethe case may be, made by the Company prior to the Time of Delivery each (other than except for the financial statements and related schedules financial schedules, and other financial and statistical information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained included therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as appears on its face to form be appropriately responsive in all material respects with to the requirements of the Exchange Act and the applicable rules and regulations of the Commission thereunder;
(viii) Neither the issue and sale of the Securities nor the fulfillment of the terms thereof will (i) result in a breach or the Exchange Actimposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement or instrument filed as applicablean exhibit to the Registration Statement (including any document filed as an exhibit to any document incorporated by reference into the Registration Statement) to which the Company is a party or bound or to which its property is subject, which breaches or impositions of such lien, charge or encumbrance would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; or (ii) violate any generally applicable statute, law, rule or regulation (other than U.S. federal securities, state or foreign securities or blue sky or anti-fraud statutes, laws, rules or regulations, laws and regulations relating to commodity (and other) futures and indices and other similar instruments, and the rules and regulations of FINRA), or any judgment, order or decree to the Commission thereunderknowledge of such counsel applicable to the Company of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its properties, which violations would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and
(ix) Except as disclosed in the Registration Statement, the Preliminary Final Prospectus and the Final Prospectus, to the knowledge of such counsel, no holders of securities of the Company have current rights to the registration of such securities under the Registration Statement. In addition, such counsel shall state that, such counsel has participated in conferences with officers and other representatives of the Company, representatives of the Underwriters and representatives of the independent auditors of the Company at which the contents of the Registration Statement, the Preliminary Final Prospectus and the Final Prospectus and any amendments or supplements thereto were discussed. Such counsel shall state that, although such counsel need not pass upon or assume any assumes no responsibility for the factual accuracy, completeness or fairness of any statements (other than as set forth in paragraphs (ii) and (iii) above, subject to the statements contained assumptions, exclusions and qualifications set forth in such counsel’s opinion) made in (a) the Registration Statement or any amendment thereto, (b) the Preliminary Final Prospectus or any amendment or supplement thereto, (c) the Final Prospectus or any amendment or supplement thereto, or (d) the documents incorporated by reference in the Registration StatementStatement or any further amendment or supplement thereto, the Pricing Disclosure Package or the Prospectus, nothing has come to such counsel’s attention that causes such counsel shall confirm that he has no reason to believe that:
(1) each part of a. the Registration StatementStatement or the prospectus included therein (except for the financial statements and financial schedules and other financial information included therein, as to which such counsel need not comment) as of its effective date, most recent Effective Date contained an any 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;, or
b. the Final Prospectus (2except for the financial statements and financial schedules and other financial information included therein, as to which such counsel need not comment) the Pricing Disclosure Packageas of its date, or as amended or supplemented, if applicable, as of the Applicable TimeClosing Date or the Option Closing Date, as the case may be, contained an or contains any untrue statement of a material fact or omitted or omits to state any a material fact necessary in order to make the statements therein, in light of the circumstances in which they were made, not misleading, or
c. the Disclosure Package (except for any financial statements and financial schedules and other financial information included therein, as to which such counsel need not comment) as of its date or as amended or supplemented, if applicable, as of the Applicable Time contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above. In rendering such opinion, such counsel need not express a belief with may (A) rely in respect of matters of fact upon certificates of officers and employees of the Company and upon information obtained from public officials, (B) assume that all documents submitted to them as originals are authentic, that all copies submitted to them conform to the financial statements and related schedules and other financial information contained thereinoriginals thereof, and with respect that the signatures on all documents examined by them are genuine, and (C) state that their opinion is limited to clause United States Federal laws. References to the Final Prospectus in this paragraph (ic) aboveshall also include any supplements thereto at the Closing Date or the Option Closing Date, such counsel need not express a belief with respect to any Form T-1as the case may be.
(d) The Underwriters Company shall have received from requested and caused ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, Canadian tax counsel for the UnderwritersCompany, such opinion or opinionsto have furnished to the Representatives their opinion, dated the Closing Date or the Option Closing Date, as the case may be, and addressed to the Representatives, to the effect that:
(i) All statements of legal conclusions contained under the caption “Non-United States Tax Considerations—Canadian Federal Income Tax Considerations” in the Preliminary Final Prospectus and the Final Prospectus are correct and accurate with respect to the matters set forth therein as of the Closing Date or the Option Closing Date, as the case may be, and such counsel is of the opinion that the statements under the caption “Non-United States Tax Considerations—Canadian Federal Income Tax Considerations” in the Preliminary Final Prospectus and the Final Prospectus, with respect to such those matters as to which no legal conclusions are provided, are an accurate discussion of the Underwriters Canadian federal income tax matters applicable to those holders who acquire Securities in connection with the offering thereof;
(ii) The statements set forth in the Preliminary Final Prospectus and the Final Prospectus under the caption “Business—Taxation of the Company—Canadian Taxation” accurately describe the Canadian income tax matters described therein; provided, however, with respect to the opinion referred to in the immediately preceding sentence only, such counsel need express no opinion or comment on any representation or statement of fact, intention or assumption, or of risk (except to the extent of any conclusion of law set out under such caption), or of a general nature (except to the extent of any conclusion of law set out under such caption), made by or on behalf of the Company in the Preliminary Final Prospectus or the Final Prospectus including, but without restricting the generality of the forgoing, the following statements under such caption: “It is not our current intention that our central management and control be exercised in Canada”; “Based on our operations and our understanding of the foregoing intention of the definition of “international shipping”, we do not believe that we are, nor do we expect to be, resident in Canada for purposes of the Canada Tax Act, and we intend that our affairs will be conducted and operated in a manner such that we do not become a resident of Canada under the Canada Tax Act”; “A Canadian resident corporation that carries on an international shipping business, as described in the previous sentence, in the Republic of the ▇▇▇▇▇▇▇▇ Islands is exempt from income tax under the current laws of the Republic of the ▇▇▇▇▇▇▇▇ Islands” and “We expect that we will qualify for these statutory exemptions under the Canada Tax Act. Based on our operations, we do not believe that we are, nor do we expect to be, carrying on a business in Canada for purposes of the Canada Tax Act other than a business that would provide us with these statutory exemptions from Canadian income tax”. The opinion of such counsel set forth in the two preceding paragraphs may reasonably requirebe based on the provisions of the Canada Tax Act and the regulations thereunder in force as of the date of such opinion, all specific proposals to amend the Canada Tax Act and the regulations thereunder which have been publicly announced by or on behalf of the Minister of Finance (Canada) prior to the date of such opinion (the “Proposed Amendments”) and such counsel’s understanding of existing case law and the current published administrative policies and assessing practices of the Canada Revenue Agency. There can be no assurance that the Proposed Amendments will be implemented in their current form or at all. Such opinion will not otherwise take into account or anticipate any changes in law, whether by legislative, governmental or judicial decision or action, and will not take into account provincial, territorial or foreign tax legislation or considerations; References to the Final Prospectus in this paragraph (d) shall also include any supplements thereto at the Closing Date or the Option Closing Date, as the case may be.
(e) The Company shall have requested and caused ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia LawP.C., upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant Islands counsel for the Company, to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or lettersthe Representatives their opinion, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering Closing Date or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.Optio
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and the Closing DateTime of Delivery, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a5(a) hereof; the any final term sheet contemplated by Section 5(A)(a5(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or or, to the Company’s knowledge, threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfactionwith.
(b) King The Company shall have furnished to the Representatives a certificate, dated the Time of Delivery, of the Company, signed by the principal financial officer, principal accounting officer or treasurer of the Company, to the effect that, to the best of his or her knowledge after reasonable investigation:
(i) The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Time of Delivery with the same effect as if made on the Time of Delivery and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Time of Delivery, in all material respects;
(ii) No stop order suspending the effectiveness of the Registration Statement or any part thereof or suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus has been issued and no proceedings for that purpose have been instituted and are pending or, to the knowledge of such officer, have been threatened as of such date; and
(iii) Since the date of the most recent financial statements included or incorporated by reference in the Pricing Prospectus, there has been no material adverse change in the financial position, results of operations, cash flows or prospects relating thereto of the Company and its consolidated subsidiaries, except as set forth in or contemplated by the Prospectus.
(c) The Company shall have furnished to the Underwriters the opinion, dated the Time of Delivery, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, Esq., Executive Vice President and Chief Legal Officer of the Company, substantially in the form attached as Exhibit A.
(d) ▇▇▇▇▇▇▇▇ & Spalding ▇▇▇▇▇▇▇▇ LLP, special counsel for to the Company, shall have furnished to the Underwriters an opinion or opinionsand letter, dated the Closing DateTime of Delivery, substantially in the form attached as Exhibit B.
(e) ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP shall have furnished to the Underwriters an opinion, dated the Time of Delivery, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by that the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth made in the Pricing Disclosure Package Prospectus and the Prospectus under the caption heading “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security ActTaxation – Puerto Rico Taxation,” insofar as they purport to constitute summaries of matters of U.S. federal Puerto Rico income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth described therein in all material respects.
(cf) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters Representatives shall have received from ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing DateTime of Delivery, with respect to such matters as the Underwriters Representatives may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(eg) At On the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered date hereof prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached PricewaterhouseCoopers LLP, as Annex I(b)).
(f) Neither independent registered public accountants of the Company nor any of its Significant Subsidiaries Company, shall have (i) sustained since furnished to the Representatives a letter, dated on such date and in form and substance reasonably satisfactory to the Representatives, containing statements and information of the latest audited type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements included and certain financial information contained or incorporated by reference in into the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since confirming that they are independent accountants within the meaning of the Act and the Exchange Act, and the respective dates as applicable published rules and regulations of which information is given in the Pricing Prospectus Commission thereunder.
(h) Subsequent to the Applicable Time, there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or occurred any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, long-term debt, stockholders’ equity or results of operations of the Company and its subsidiariesconsolidated subsidiaries that the Representatives reasonably conclude, otherwise than as set forth or contemplated in after consultation with the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii)Company, is in the judgment of the Representatives so material and adverse as to make it impracticable impractical or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner Securities as contemplated in the Pricing Disclosure Package or by the Prospectus.
(gi) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect furnished to the furnishing Representatives such further information, certificates and documents as they may reasonably request prior to the Time of prospectuses on the business day next succeeding the date of this AgreementDelivery.
(hj) On or after the Applicable Time Time, (i) no downgrading shall have occurred in the rating accorded the Company’s unsecured debt securities or preferred stock by any “nationally recognized statistical rating organization,” ”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch surveillance or review, with possible negative implications, its rating of any of the Company’s unsecured debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(jk) The Company shall have furnished complied with the provisions of the first sentence of Section 5(e) hereof with respect to the furnishing of prospectuses on the Business Day next succeeding the date of this Agreement. If any of the conditions specified in this Section 8 shall not have been fulfilled in all material respects when and as provided in this Agreement, or caused 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 Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be furnished to you cancelled at, or at the any time prior to, such Time of Delivery certificates by the Representatives. Notice of officers of such cancellation shall be given to the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance in writing or by the Company of all of its respective obligations hereunder to be performed at telephone or prior to such time, as to the matters set forth telegraph confirmed in subsections (a) and (f) of this Section and as to such other matters as you may reasonably requestwriting.
Appears in 1 contract
Sources: Underwriting Agreement (Popular Inc)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Republic made in any certificates pursuant to the provisions hereof, to the performance by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; and the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfactionthis Agreement.
(b) King & Spalding LLP, counsel for The Head or Acting Head of the Company, Legal Affairs Group of the Dirección General de Crédito Público of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Underwriters an opinion or opinionsRepresentatives such counsel’s written opinion, dated the Closing Date, to the effect that:
(i) This Agreement The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly Republic and validly authorizedthe Agreements constitute legal, executed and delivered by the Company and constitutes a valid and binding agreement obligations of the Company, Republic enforceable in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iiiiv) The issuance, execution and delivery of the Notes Securities have been duly and validly authorized by the Company and, when authenticated by the Indenture Trusteeauthorized, executed, issued and delivered by the Republic in accordance with the manner provided in Fiscal Agency Agreement, and, assuming due authentication and delivery by the Indenture will Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and Republic enforceable against the Company in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries Securities) of the matters set forth therein Republic that will rank equal in right of payment with all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel other present and future unsecured and unsubordinated External Indebtedness of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersRepublic;
(vi) The There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of this Agreementany of the Agreements, the issuance and sale issue of the Notes, and the consummation of the transactions and performance of the obligations Securities as contemplated herein and therein contemplated will not conflict with in the Prospectus, or result in a breach the performance or violation observance by the Republic of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Agreements or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesSecurities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the issuance due execution, delivery and sale performance by the Republic of any of the Notes Agreements or the consummation Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Decree No. 2681 of December 29, 1993, (V) authorization by Acts of the Comisión Interparlamentaria de Crédito Público adopted in its meetings held on May 31, 2001, June 13, 2002 and June 20, 2002, (VI) Resolution No. 2526 dated November 27, 2002 of the Ministerio de Hacienda y Crédito Público, (VII) approval No. 3156 dated March 5, 2002 of the Consejo Nacional de Política Económica y Social (“CONPES”), (VIII) approval No. 3176 dated July 15, 2002 of the CONPES, and (IX) External Resolution No. 3 of 2001 and External Resolution No. 2 of 2002 issued by the Company Board of Directors of the transactions contemplated by this Agreement, except Central Bank (each of which shall be listed in such as have been obtained under counsel’s written opinion and copies of which shall be furnished to counsel to the Act and such consents, approvals, authorizations, registrations Underwriters on or qualifications as may be required under state securities or Blue Sky laws in connection with prior to the purchase and distribution of the Notes by the UnderwritersClosing Date);
(viii) The Company To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not andnecessary that any Agreement or the Securities be registered, after giving effect recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 2526 of November 27, 2002, issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) a summary of the Agreements in the Diario Unico de Contratación Pública of the Republic, to satisfy the requirement for such publications, (B) notice of the external indebtedness represented by the Securities to the offering Banco de la República and sale (C) in accordance with External Resolutions No. 3 of May 25, 2001 and No. 2 of June 7, 2002, issued by the Junta Directiva del Banco de la República, the delivery of written information from the Director General of Public Credit of the Notes and Ministerio de Hacienda y Crédito Público to the application Junta Directiva del Banco de la República regarding the proposed issuance of the proceeds thereofSecurities, will not each of which shall be an “investment company,” as such term is defined in effected on or prior to the Investment Company Act of 1940, as amendedClosing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that, the Securities are held by a non-resident and non-domiciliary of the Republic.
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process; provided, that, except as provided under Article 177 of the Código Contencioso Administrativo, which does not override Articles 684 or 513 of the Código de Procedimiento Civil, of the Republic, the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 15 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 14 hereof, Section 17 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur”, subject to the provisions of Article 693 of the Código de Procedimiento Civil which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic and subject to compliance with the provisions of Article 694 of the Código de Procedimiento Civil. The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus and any further amendments and supplements theretoProspectus, as applicableamended or supplemented, made and their filing with the Commission have been duly authorized by and on behalf of the Company prior to the Time of Delivery (other than the financial statements Republic, and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements amended, has been duly executed by and on behalf of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicableRepublic, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained information in the Registration Statement, the Pricing Disclosure Package or as amended, and the Prospectus, such counsel shall confirm that he as amended or supplemented, stated on the authority of public officials of the Republic has no reason to believe that:been stated in their official capacities thereunto duly authorized;
(1xvii) each part of The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of its effective dateColombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Registration Statement, at the time it became effective, contained 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;; and
(2B) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted No information has come to state any material fact necessary in order such counsel’s attention that causes such counsel to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) believe that the Prospectus, as of its date and as of the date hereofthereof or on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Prospectus (4) any amendment except to the Registration Statement extent expressly set forth in (xvii) above) and that such counsel makes no representation that such counsel has independently verified the accuracy, completeness and fairness of such statements (except as aforesaid), and that such counsel’s opinions referred to in this subsection (b) are limited to matters of Colombian law and, insofar as the opinion required by this subsection (b) is affected by matters of United States or New York law, it may be given in reliance upon the opinion required to be filed or that there are any contracts or other documents by subsection (c) of a character required to be filed this Section 6 and that, insofar as an exhibit the foregoing opinions relate to the Registration Statement legality, validity, binding effect or required to be incorporated by reference into enforceability of any agreement or obligation of the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) aboveRepublic, such counsel need not express a belief with respect has assumed that each party to such agreement or obligation other that the Republic has satisfied those legal requirements that are applicable to it to the financial statements and related schedules and other financial information contained therein, and with respect extent necessary to clause (i) above, make such counsel need not express a belief with respect to any Form T-1agreement or obligation enforceable against it.
(dc) The Underwriters shall have received from Cleary, Gottlieb, S▇▇▇▇ & H▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, United States counsel for to the UnderwritersRepublic, such opinion or opinionsshall have furnished to the Representatives their written opinion, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.that:
(i) On or after Assuming that the Applicable Time there shall not Securities have occurred any been duly authorized, executed, authenticated, issued and delivered against payment therefor, the Securities constitute valid, binding and enforceable obligations of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financialRepublic, political or economic conditions in the United States or elsewheresubject to applicable bankruptcy, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms insolvency and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.similar laws affecting creditors’
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The ------------------------------------------------- obligations of the several Underwriters to purchase the Notes under this Agreement shall be subject to the accuracy of the representations and warranties on the part of the Company contained and the Selling Stockholder herein set forth as of the Applicable Time, the date hereof and the as of each Closing Date, to the accuracy of the statements of the Company Company's officers and the Selling Stockholder made in any certificates pursuant to the provisions hereof, to the performance by the Company and the Selling Stockholder of its their respective obligations hereunder hereunder, and to the following additional conditions, unless waived in writing by the Representatives:
(a) The Prospectus Registration Statement shall have been filed with declared effective by the Commission not later than 5:30 p.m., Washington, D.C. time, prior to the date on the date of this Agreement, or such later time as shall have been consented to by the Representatives, which consent shall be deemed to have been given if the Registration Statement shall have been declared effective on or before the date and time requested in the acceleration request submitted on behalf of the Representatives pursuant to Rule 461 under the Act; all filings required by Rules 424(b) and 430A under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433timely made; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding by the Commission or any state securities commission nor, to the knowledge of the Company, shall any proceedings for that purpose shall have been initiated or threatened by the Commission threatened; and no notice of objection any request of the Commission to the use or any state securities commission for inclusion of additional information in the Registration Statement Statement, or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission otherwise, shall have been complied with to your reasonable satisfactionthe satisfaction of the Representatives.
(b) King & Spalding LLP, counsel for Since the Company, shall have furnished to dates as of which information is given in the Underwriters an opinion or opinions, dated the Closing Date, to the effect thatRegistration Statement:
(i) This Agreement has been duly authorizedthere shall not have occurred any change or development involving, executed and delivered by or which could be expected to involve, a Material Adverse Effect, whether or not arising from transactions in the Company;ordinary course of business; and
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes shall not have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from any labor dispute, strike, fire, explosionflood, flood windstorm, accident or other calamity, calamity (whether or not covered by insurance, insured) or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of whichwhich on the Company, in any such case described in clause (i) or (ii)) above, is in the judgment opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes Shares on the terms and in the manner contemplated in the Pricing Disclosure Package or Registration Statement and the Prospectus.
(gc) The Representatives shall not have advised the Company that the Registration Statement or the Prospectus contains an untrue statement of fact that, in the opinion of the Representatives or counsel for the Underwriters, is material, or omits to state a fact that, in the opinion of the Representatives or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(d) The Representatives shall have received an opinion of ▇▇▇▇▇, Johnson, Robinson, ▇▇▇▇ & Ragonetti, P.C., counsel for the Company, addressed to the Representatives, as the representatives of the Underwriters, and dated the First Closing Date or the Second Closing Date, as the case may be, to the effect that:
(i) The Company shall has been duly incorporated and is validly existing as a corporation and in good standing under the laws of its jurisdiction of incorporation, with full corporate power and authority to own, lease and operate its properties and conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; the Company is duly registered and qualified to do business as a foreign corporation under the laws of, and is in good standing as such in, each jurisdiction in which such registration or qualification is required, except where the failure to so register or qualify would not have complied a Material Adverse Effect;
(ii) The authorized capital stock of the Company consists of 10,000,000 shares of Common Stock, par value $0.10 per share, and 1,000,000 shares of Preferred Stock, and all such stock conforms as to legal matters to the descriptions thereof in the Prospectus and the Registration Statement;
(iii) The issued and outstanding shares of capital stock of the Company immediately prior to the issuance and sale of the Shares to be sold by the Company hereunder have been duly authorized and validly issued, are fully paid and nonassessable, and there are no preemptive, preferential or other rights to subscribe for or purchase any shares of capital stock of the Company, and no shares of capital stock of the Company have been issued in violation of such rights;
(iv) To such counsel's knowledge, except for the Subsidiaries, the Company has no subsidiaries, and the Company does not own any equity interest in or control, directly or indirectly, any other corporation, limited liability company, partnership, joint venture, association, trust or other business organization except as described in the Prospectus, the Registration Statement and Schedule 2(c) hereto; each Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; each Subsidiary is duly registered or qualified to do business as a foreign corporation under the laws of, and is in good standing as such in, each jurisdiction in which such registration or qualification is required, except where the failure to so register or qualify would not have a Material Adverse Effect; the issued and outstanding shares of the capital stock of each Subsidiary have been duly authorized and validly issued, are fully paid and nonassessable and there are no preemptive, preferential or other rights to subscribe for or purchase any shares of capital stock of any Subsidiary, and no shares of capital stock of any Subsidiary have been issued in violation of such rights; the Company owns directly and beneficially all of the issued and outstanding capital stock of each Subsidiary, free and clear of any and all liens, claims, encumbrances and security interests;
(v) The certificates for the Shares to be delivered hereunder are in due and proper form and conform to the requirements of applicable law; and when duly countersigned by the Company's transfer agent, and delivered to the Representatives or upon the order of the Representatives against payment of the agreed consideration therefor in accordance with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement., the Shares to be sold by the Company represented thereby will be duly authorized and validly issued, fully paid and nonassessable, and free of any preemptive, preferential or other rights to subscribe for or purchase shares of Common Stock;
(hvi) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) The Registration Statement has become effective under the Act, and to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or are threatened under the Act or any Blue Sky Laws; the Registration Statement and the Prospectus and any amendment or supplement thereto, including any document incorporated by reference in the Registration Statement, (iiexcept for the financial statements and other statistical or financial data included therein as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act; the conditions for use of Form SB-2, set forth in the General Instructions thereto, have been satisfied; no facts have come to the attention of such organization shall have publicly announced counsel which lead it to believe that it either the Registration Statement or the Prospectus or any amendment or supplement thereto, including any document incorporated by reference in the Registration Statement, contains any untrue statement of a material fact or omitted or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of the First Closing Date or the Second Closing Date, as the case may be, contained any untrue statement of a material fact or omitted or will omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they were made (except for the financial statements and other financial data included therein as to which such counsel need express no opinion); to such counsel's knowledge, there are no legal or governmental proceedings pending or threatened, including, without limitation, any such proceedings that are related to environmental or employment discrimination matters, required to be described in the Registration Statement or the Prospectus which are not so described or which question the validity of this Agreement or any action taken or to be taken pursuant thereto, nor is there any transaction, relationship, agreement, contract or other document of a character required to be described in the Registration Statement or the Prospectus or to be filed as an exhibit to or incorporated by reference in the Registration Statement by the Act, which is not described, filed or incorporated by reference as required;
(vii) The Company has under surveillance, outlook, watch or review, with possible negative implications, its rating of any full corporate power and authority to enter into and perform this Agreement; the performance of the Company’s debt securities or preferred stock.
(i) On or after 's obligations hereunder and the Applicable Time there shall not have occurred any consummation of the following: (i) a suspension or material limitation in trading in securities generally transactions described herein have been duly authorized by the Company by all necessary corporate action and this Agreement has been duly executed and delivered by and on the New York Stock Exchange; (ii) a suspension or material limitation in trading in behalf of the Company’s securities on , and is a legal, valid and binding agreement of the New York Stock ExchangeCompany enforceable against the Company in accordance with its terms, except that rights to indemnity or contribution may be limited by applicable law and except as enforceability of this Agreement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, and by equitable principles limiting the right to specific performance or other equitable relief; (iii) a general moratorium on commercial banking activities declared by either Federal no consent, approval, authorization or New York other order or Georgia authorities decree of any court, regulatory or a material disruption in commercial banking governmental body, arbitrator, administrative agency or securities settlement or clearance services in the United States; (iv) the outbreak or escalation other instrumentality of hostilities involving the United States or other country or jurisdiction having jurisdiction over the declaration Company is required for the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement (except for compliance with the Act, the Exchange Act, applicable Blue Sky Laws and the clearance of the underwriting arrangements by the United States NASD);
(viii) The execution, delivery and performance of this Agreement by the Company will not: (A) violate any provisions of the Articles of Incorporation or By-laws of the Company or any Subsidiary; (B) or result in the breach, modification or termination of, or constitute a national emergency default under, any agreement, lease, franchise, license, indenture, permit, mortgage, deed of trust, other evidence of indebtedness or war other instrument to which the Company or any Subsidiary is a party or by which the Company or such Subsidiary, or any of their respective owned or leased property is bound, and which is filed or incorporated by reference as an exhibit to the Registration Statement; or (vC) the occurrence violate any statute, ordinance, rule, or regulation of any regulatory or governmental body, or to such counsel's knowledge, any order or decree of any court, arbitrator, administrative agency or other calamity or crisis or any change in financial, political or economic conditions in instrumentality of the United States or elsewhereother country or jurisdiction having jurisdiction over the Company or any Subsidiary (assuming compliance with all applicable federal and state securities laws);
(ix) To such counsel's knowledge, if except as described in the effect Prospectus, there are no holders of Common Stock or other securities of the Company, or securities that are convertible or exchangeable into Common Stock or other securities of the Company, that have rights to the registration of such securities
(x) The Common Stock (including the Shares) has been designated for inclusion as a National Market security on The Nasdaq Stock Market and is registered under the Exchange Act;
(xi) Neither the Company nor any Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Articles of Incorporation or By-laws or, to such counsel's knowledge, in default in any material respect in the performance of any such event specified in clause (iv) agreement, lease, franchise, license, permit, mortgage, deed of trust, evidence of indebtedness or (v) other instrument, or any other document that is filed as an exhibit to or incorporated by reference in the judgment Registration Statement, to which the Company or any Subsidiary is subject or bound;
(xii) Neither the Company nor any Subsidiary is an "investment company", an "affiliated person" of, or "promoter" or "principal underwriter" for, an "investment company", as such terms are defined in the Investment Company Act of 1940, as amended, and, upon its receipt of any proceeds from the sale of the Representatives makes it impracticable Shares, the Company will not become or inadvisable be deemed to proceed with be an "investment company" thereunder;
(xiii) The description or incorporation by reference in the public offering Registration Statement and the Prospectus of legal matters, statutes, documents, regulations, legal and governmental proceedings, and contracts and other legal documents described or incorporated by reference therein fairly and correctly present, in all material respects, the information required to be included therein by the Act and fairly summarize the matters referred to therein; and
(xiv) All offers and sales by the Company of its capital stock before the date hereof were at all relevant times duly registered under or exempt from the registration requirements of the Act, and were duly registered under or the delivery subject of an available exemption from the Notes on registration requirements of any applicable Blue Sky Laws. In rendering such opinion, counsel for the terms and in Company may rely, to the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused extent counsel deems such reliance proper, as to be furnished to you at the Time matters of Delivery fact upon certificates of officers of the Company and trustees satisfactory to you as of governmental officials, and copies of all such certificates shall be furnished to the accuracy Representatives and for the Underwriters on or before each Closing Date. Such opinion may incorporate reasonable exclusions and qualifications.
(e) The Representatives shall have received an opinion from of ▇▇▇▇▇, Johnson, Robinson, ▇▇▇▇ & Ragonetti, P.C., counsel for the Selling Stockholder, dated the First Closing Date or the Second Closing
(i) Each of this Agreement and the Custody Agreement has been duly authorized, executed and delivered by or on behalf of the representations Selling Stockholder and warranties such agreement constitutes the valid and binding agreement of the Company herein at Selling Stockholder, enforceable in accordance with its respective terms, except that rights to indemnity or contribution thereunder may be limited by applicable law and except as enforceability of such timeagreement may be limited by bankruptcy, as insolvency, reorganization, moratorium or similar laws generally affecting the rights of creditors and by equitable principles limiting the right to specific performance or other equitable relief;
(ii) The execution and delivery of this Agreement and the Custody Agreement and the consummation of the transactions herein and therein contemplated will not, if applicable, result in the violation of any provisions of the Articles of Incorporation, By-laws or other governing documents of the Selling Stockholder, or constitute a breach, or to such counsel's knowledge, be in contravention, of any provision of any agreement, franchise, license, indenture, mortgage, deed of trust or other instrument to which the Selling Stockholder is a party or by which the Selling Stockholder or the Selling Stockholder's property may be bound or affected, or any statute, rule or regulation applicable to the performance by the Company of all of its respective obligations hereunder to be performed at Selling Stockholder, or prior to such timecounsel's knowledge, as to violate any order or decree of any court, regulatory or governmental body, administrative body or instrumentality of the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.Unit
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the several Underwriters to purchase the Notes under this Agreement shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein set forth as of the Applicable Time, the date hereof and as of the Closing Date, to the accuracy of the statements of the Company Company's officers made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder hereunder, and to the following additional conditions, unless waived in writing by the Underwriters:
(a) The Prospectus Registration Statement shall have been filed with declared effective by the Commission pursuant prior to Rule the date of this Agreement; all filings required by Rules 424(b) and 430A under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433timely made; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding by the Commission or any state securities commission nor, to the knowledge of the Company, shall any proceedings for that purpose shall have been initiated or threatened by the Commission threatened; and no notice of objection any request of the Commission to the use or any state securities commission for inclusion of additional information in the Registration Statement Statement, or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission otherwise, shall have been complied with to your the reasonable satisfactionsatisfaction of the Underwriters.
(b) King & Spalding LLP, counsel for Since the Company, shall have furnished to dates as of which information is given in the Underwriters an opinion or opinions, dated the Closing Date, to the effect thatRegistration Statement and Prospectus:
(i) This Agreement has been duly authorizedthere shall not have occurred any change or development involving, executed and delivered by or which could be expected to involve, a Material Adverse Effect, whether or not arising from transactions in the Company;ordinary course of business; and
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes shall not have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from any labor dispute, strike, fire, explosionflood, flood windstorm, accident or other calamity, calamity (whether or not covered by insurance, insured) or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of whichwhich on the Company, in any such case described in clause (i) or (ii)) above, is in the judgment of the Representatives Underwriters so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or Registration Statement and the Prospectus.
(gc) The Underwriters shall not have advised the Company that the Registration Statement or the Prospectus contains an untrue statement of fact that, in the opinion of the Underwriters or counsel for the Underwriters, is material, or omits to state a fact that, in the opinion of the Underwriters or such counsel, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(d) The Underwriters shall have received an opinion of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company addressed to the Underwriters and dated the Closing Date substantially to the effect that:
(i) The Company shall has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, and is qualified to do business and is in good standing in Alabama, Colorado, Illinois, Indiana, Kansas, Maryland, Pennsylvania, Texas, Washington and Wisconsin, which are the only jurisdictions in which the Company owns or leases any material property;
(ii) Each Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation, with full corporate power and authority to own, lease and operate its properties and to conduct its business as presently conducted and as described in the Prospectus and the Registration Statement; each Significant Subsidiary is duly registered or qualified to do business as a foreign corporation under the laws of, and is in good standing as such in, each jurisdiction in which such registration or qualification is required, except where the failure to so register or qualify would not have complied a Material Adverse Effect; all the shares of common stock of each of the Significant Subsidiaries as of the Closing Date are validly issued and are owned by the Company of record and to the knowledge of such counsel (A) beneficially and (B) free and clear of any security interest, adverse claim or encumbrance except as disclosed in the Prospectus;
(iii) The Notes to be issued and sold by the Company under this Agreement have been duly authorized by the Company and, when duly executed, authenticated and delivered to and paid for by the Underwriters, will be valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable in accordance with their terms, except to the extent that such validity, binding effect and enforceability may be limited by (A) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws relating to or affecting creditors' rights generally, or (B) general principles of equity, or the possible unavailability of the remedy of specific performance or injunctive relief, regardless of whether issues of validity, binding effect or enforceability are considered in a proceeding in equity or at law;
(iv) This Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid, legally binding and enforceable obligation of the Company (a) except as rights and obligations under Section 8 hereof may be limited by applicable law, including securities laws, public policy considerations underlying such laws, and equitable principles, and (b) except to the extent that such validity, binding effect and enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws relating to or affecting creditors' rights generally, or (ii) general principles of equity, or the possible unavailability of the remedy of specific performance or injunctive relief, regardless of whether issues of validity, binding effect or enforceability are considered in a proceeding in equity or at law;
(v) The Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act of 1939 and constitutes a valid, legally binding and enforceable instrument of the Company, except to the extent that such validity, binding effect and enforceability may be limited by (a) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws relating to or affecting creditors' rights generally, or (b) general principles of equity, or the possible unavailability of the remedy of specific performance or injunctive relief, regardless of whether the issues of validity, binding effect or enforceability are considered in a proceeding in equity or at law;
(vi) The Company has corporate power and authority to execute and deliver and perform its obligations under this Agreement and the Indenture;
(vii) The statements contained in the Prospectus, insofar as they purport to summarize the provisions of the first sentence Notes and the Indenture, present fair summaries of Section 5(A)(dsuch provisions;
(viii) hereof The performance of this Agreement and the Indenture by the Company and the consummation by the Company of the transactions contemplated herein will not (a) result in a breach or default by the Company under any indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument known to us by which the Company is bound or to which the Company is a party or by which any material properties of the Company are bound, (b) conflict with or result in any default under the Certificate of Incorporation or the By-laws, in each case as amended, of the Company; or (c) result in the violation by the Company of any statute, order, rule or regulation of any court of governmental agency or body, in each case known to us, by which the Company is bound (except that with respect to the furnishing Act and the rules and regulation promulgated thereunder, such counsel's opinion is limited to the matters expressed in paragraphs ix, x, xi, xii, xiii and xiv below, and it being understood that you have not requested and such counsel is not expressing any opinion as to any state securities or "Blue Sky" laws);
(ix) No consent, approval, authorization or order of, or registration or qualification with, any governmental agency or body or other regulatory authority is required for the performance by the Company of prospectuses on the business day next succeeding the date of transactions contemplated by this Agreement., except such as have been obtained under the Act and such as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(hx) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) The Registration Statement has become effective under the Act, and to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the Commission;
(iixi) The conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied;
(xii) Such counsel has participated in the preparation of the Registration Statement and the Prospectus. From time to time in connection therewith, such counsel has had discussions with the officers, directors and employees of the Company and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, the independent accountants who examined certain of the financial statements of the Company and its consolidated Subsidiaries included in the Registration Statement and the Prospectus, and the Underwriters concerning the information contained in the Registration Statement and the Prospectus and the proposed responses to various items in Form S-3. Based thereupon, such counsel is of the opinion that the Registration Statement and the Prospectus (except for the operating statistics, financial statements, financial schedules and other financial data included therein or omitted therefrom, and except for the information referred to under the caption "Experts" as having been included in the Prospectus on the authority of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP as experts, as to which such counsel expresses no opinion), as of their respective effective and issue dates complied as to form in all material respects with the requirements of the Act and the rules and regulations thereunder.
(xiii) Such counsel has not independently verified and is not passing upon, and does not assume any responsibility for the accuracy, completeness or fairness of the information contained in the Registration Statement and the Prospectus. Based on the participation and discussions described above, however, no facts have come to such organization shall have publicly announced counsel's attention that cause such counsel to believe that the Registration Statement (except for the operating statistics, financial statements, financial schedules, and other financial data included therein or omitted therefrom, and except for the information referred to under the caption "Experts" as having been included in the Registration Statement and the Prospectus on the authority of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP as experts), at the time it has became effective contained any untrue statement of material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that the Prospectus (with the foregoing exceptions) on the Closing Date contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under surveillancewhich they were made, outlooknot misleading;
(xiv) Based upon the participation and discussions described above, watch or review, with possible negative implications, its rating such counsel does not know of any litigation or governmental proceedings, pending or threatened, required to be described in the Prospectus that are not described as required, or of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be described in the Registration Statement or the Prospectus which are not filed or described as required. With respect to the statements set forth in the preceding sentence regarding litigation and governmental proceedings, such counsel has with your consent relied on a review of litigation summaries furnished by the Company to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP in connection with its audit of the Company’s debt securities 's financial statements for the fiscal year ended July 31, 1996, and on inquiries of lawyers presently in such counsel's firm who, according to such counsel's records, have been engaged in legal services on behalf of the Company subsequent to July 31, 1996, but such counsel has neither examined nor requested an examination of the indices or preferred stockrecords of any court, or any governmental or other agency, authority, instrumentality or entity or made any inquiries of public officials;
(xv) Neither the Company nor any Significant Subsidiary is, nor with the giving of notice or passage of time or both would be, in violation of its respective Certificate of Incorporation or By-laws; and
(xvi) Neither the Company nor any Significant Subsidiary is an "investment company", an "affiliated person" of, or "promoter" or "principal underwriter" for, an "investment company", as such terms are defined in the Investment Company Act of 1940, as amended. In rendering their opinion, such counsel may rely, to the extent deemed advisable by such counsel, (a) upon certificates of state officials, and (b) on opinions of counsel (provided, however, that you shall have received a copy of each of such opinion which shall be dated the Closing Date addressed to you or otherwise authorizing you to rely thereon; and that ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, in its opinion to you delivered pursuant to this subsection, shall state that such counsel are satisfactory to them and ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇ has no reason to believe that you and they are not entitled to so rely).
(e) The Underwriter shall have received an opinion of ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇, counsel for the Underwriters, dated the Closing Date, with respect to the issuance and sale of the Notes by the Company, the Registration Statement and other related matters as the Underwriters may require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as they request for the purpose of enabling them to pass upon such matters.
(f) The Underwriters shall have received on the Closing Date, a certificate of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman of the Board and Chief Executive Officer, and ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Senior Vice President and Chief Financial Officer, of the Company, to the effect that:
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at set forth in section 2 hereof are true and correct as of the date of this Agreement and as of the date of such timecertificate, as to the performance by and the Company of has complied with all of its respective obligations hereunder the agreements and satisfied all the conditions to be performed or satisfied by it at or prior to the date of such time, as certificate;
(ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment or supplement thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and to the matters knowledge of the respective signatories, no proceedings for that purpose have been initiated or are pending or contemplated under the Act or under the Blue Sky Laws of any jurisdiction;
(iii) Each of the respective signatories has carefully examined the Registration Statement and the Prospectus, and any amendment or supplement thereto, including any documents filed under the Exchange Act and deemed to be incorporated by reference in the Registration Statement, and such documents contain all statements required to be stated therein, and do not include any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in subsections an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set forth, and there has been no document required to be filed under the Exchange Act that upon such filing would be deemed to be incorporated by reference in the Registration Statement that has not been so ordered; and
(aiv) and (f) of this Section and as to such other matters as you may reasonably request.Since the date on which the Registration Statement was initially filed with the Commission, there shall not have occurred
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Republic made in any certificates pursuant to the provisions hereof, to the performance by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; and the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfactionthis Agreement.
(b) King & Spalding LLP, counsel for The Head or Acting Head of the Company, Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Underwriters an opinion or opinionsRepresentatives such counsel’s written opinion, dated the Closing Date, to the effect that:
(i) This Agreement The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly Republic and validly authorizedthe Agreements constitute legal, executed and delivered by the Company and constitutes a valid and binding agreement obligations of the Company, Republic enforceable in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iiiiv) The issuance, execution and delivery of the Notes Securities have been duly and validly authorized by the Company and, when authenticated by the Indenture Trusteeauthorized, executed, issued and delivered by the Republic in accordance with the manner provided in Fiscal Agency Agreement, and, assuming due authentication and delivery by the Indenture will Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and Republic enforceable against the Company in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries Securities) of the matters set forth therein Republic that will rank equal in right of payment with all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel other present and future unsecured and unsubordinated External Indebtedness of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersRepublic;
(vi) The There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of this Agreementany of the Agreements, the issuance and sale issue of the Notes, and the consummation of the transactions and performance of the obligations Securities as contemplated herein and therein contemplated will not conflict with in the Prospectus, or result in a breach the performance or violation observance by the Republic of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Agreements or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesSecurities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the issuance due execution, delivery and sale performance by the Republic of any of the Notes Agreements or the consummation Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Decree No. 2681 of December 29, 1993, (VI) authorization by Acts of the Comisión Interparlamentaria de Crédito Público adopted in its meetings held on July 21, 2003, December 18, 2003 and February 17, 2004 (VII) Resolution No. 2400 dated September 10, 2004 of the Ministerio de Hacienda y Crédito Público, (VIII) approval No. 3209 dated December 19, 2002 of the Consejo Nacional de Política Económica y Social (“CONPES”), (IX) approval No. 3262 dated January 9, 2004 of the CONPES, and (X) External Resolution No. 7 of November 14, 2003, issued by the Company Board of Directors of the transactions contemplated by this Agreement, except Central Bank (each of which shall be listed in such as have been obtained under counsel’s written opinion and copies of which shall be furnished to counsel to the Act and such consents, approvals, authorizations, registrations Underwriters on or qualifications as may be required under state securities or Blue Sky laws in connection with prior to the purchase and distribution of the Notes by the UnderwritersClosing Date);
(viii) The Company To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not andnecessary that any Agreement or the Securities be registered, after giving effect recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 2400 of September 10, 2004, issued by the ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in the Diario Oficial of the Republic and (y) a summary of the Agreements in the Diario Unico de Contratación Pública of the Republic, to satisfy the requirement for such publications, (B) notice of the external indebtedness represented by the Securities to the offering Banco de la República and sale (C) in accordance with External Resolution No. 7 of November 14, 2003, issued by the Junta Directiva del Banco de la República, the delivery of written information from the Director General of Public Credit of the Notes and Ministerio de Hacienda y Crédito Público to the application Junta Directiva del Banco de la República regarding the proposed issuance of the proceeds thereofSecurities, will not each of which shall be an “investment company,” as such term is defined in effected on or prior to the Investment Company Act of 1940, as amendedClosing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that, the Securities are held by a non-resident and non-domiciliary of the Republic.
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process; provided, that, except as provided under Article 177 of the Código Contencioso Administrativo, which does not override Articles 684 or 513 of the Código de Procedimiento Civil of the Republic, the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 15 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 14 hereof, Section 17 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur”, subject to the provisions of Article 693 of the Código de Procedimiento Civil which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic and subject to compliance with the provisions of Article 694 of the Código de Procedimiento Civil. The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus and any further amendments and supplements theretoProspectus, as applicableamended or supplemented, made and their filing with the Commission have been duly authorized by and on behalf of the Company prior to the Time of Delivery (other than the financial statements Republic, and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements amended, has been duly executed by and on behalf of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicableRepublic, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained information in the Registration Statement, the Pricing Disclosure Package or as amended, and the Prospectus, such counsel shall confirm that he as amended or supplemented, stated on the authority of public officials of the Republic has no reason to believe that:been stated in their official capacities thereunto duly authorized;
(1xvii) each part of The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of its effective dateColombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Registration Statement, at the time it became effective, contained 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;; and
(2B) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted No information has come to state any material fact necessary in order such counsel’s attention that causes such counsel to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) believe that the Prospectus, as of its date and as of the date hereofthereof or on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Prospectus (4) any amendment except to the Registration Statement extent expressly set forth in (xvii) above) and that such counsel makes no representation that such counsel has independently verified the accuracy, completeness and fairness of such statements (except as aforesaid), and that such counsel’s opinions referred to in this subsection (b) are limited to matters of Colombian law and, insofar as the opinion required by this subsection (b) is affected by matters of United States or New York law, it may be given in reliance upon the opinion required to be filed or that there are any contracts or other documents by subsection (c) of a character required to be filed this Section 6 and that, insofar as an exhibit the foregoing opinions relate to the Registration Statement legality, validity, binding effect or required to be incorporated by reference into enforceability of any agreement or obligation of the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) aboveRepublic, such counsel need not express a belief with respect has assumed that each party to such agreement or obligation other than the Republic has satisfied those legal requirements that are applicable to it to the financial statements and related schedules and other financial information contained therein, and with respect extent necessary to clause (i) above, make such counsel need not express a belief with respect to any Form T-1agreement or obligation enforceable against it.
(d▇) The Underwriters shall have received from ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP▇, United States counsel for to the UnderwritersRepublic, such opinion or opinionsshall have furnished to the Representatives their written opinion, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.that:
(i) On or after Assuming that the Applicable Time there shall not Securities have occurred any been duly authorized, executed, authenticated, issued and delivered against payment therefor, the Securities constitute valid, binding and enforceable obligations of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financialRepublic, political or economic conditions in the United States or elsewheresubject to applicable bankruptcy, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms insolvency and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.similar laws
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters hereunder, as to purchase the Notes Units to be delivered at each Time of Delivery, shall be subject subject, in their discretion, to the accuracy of the condition that all representations and warranties on the part and other statements of the Company contained herein are, at and as of the Applicable TimeTime and such Time of Delivery, true and correct, the date hereof and the Closing Date, to the accuracy of the statements of condition that the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company shall have performed all of its obligations hereunder theretofore to be performed, and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a5(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other all material required to be filed by the Company pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods period prescribed for such filings filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been receivedCommission; no stop order suspending or preventing the use of the Pricing Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Republic made in any certificates pursuant to the provisions hereof, to the performance by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereofof this Agreement; the and any final term sheet contemplated by Section 5(A)(a4(a) hereof, and any other material required to be filed by the Company Republic pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for The Head or Acting Head of the Company, Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Underwriters an opinion or opinionsRepresentatives such counsel’s written opinion, dated the Closing Date, to the effect that:
(i) This Agreement The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly Republic and validly authorizedthe Agreements constitute legal, executed and delivered by the Company and constitutes a valid and binding agreement obligations of the Company, Republic enforceable in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iiiiv) The issuance, execution and delivery of the Notes Securities have been duly and validly authorized by the Company and, when authenticated by the Indenture Trusteeauthorized, executed, issued and delivered by the Republic in accordance with the manner provided in Fiscal Agency Agreement, and, assuming due authentication and delivery by the Indenture will Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and Republic enforceable against the Company in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries Securities) of the matters set forth therein Republic that will rank equal in right of payment with all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel other present and future unsecured and unsubordinated External Indebtedness of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersRepublic;
(vi) The There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of this Agreementany of the Agreements, the issuance and sale issue of the Notes, and the consummation of the transactions and performance of the obligations Securities as contemplated herein and therein contemplated will not conflict with in the Prospectus, or result in a breach the performance or violation observance by the Republic of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Agreements or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesSecurities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the issuance due execution, delivery and sale performance by the Republic of any of the Notes Agreements or the consummation by Securities, (B) the Company validity or enforceability against the Republic of any of the transactions contemplated by this AgreementAgreements or the Securities, or (C) the issue, sale or delivery of the Securities, except such as have been obtained under for (I) Law 533 of November 11, 1999, (II) the Act and such consentssurviving portions of Law 185 of January 27, approvals1995 which were not repealed or amended by Law 533 of November 11, authorizations1999, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with (III) the purchase and distribution relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Decree No. 2681 of December 29, 1993, (VII) Resolution No. 131 dated January 21, 2013 of the Notes Ministerio de Hacienda y Crédito Público, (VIII) CONPES Document No. 3734 DNP:SC-DEE MINHACIENDA, dated November 23, 2012, (IX) Authorization by Act of the UnderwritersComisión Interparlamentaria de Crédito Público adopted in its meeting held on January 17, 2013 and (X) External Resolution No. 13 dated November 23, 2012 of the Board of Governors of the Central Bank of Colombia (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) The Company To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not andnecessary that any Agreement or the Securities be registered, after giving effect recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 131 dated January 21, 2013 issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) the publication of the Agreements in the Sistema Electrónico de Contratación Pública-SECOP of the Republic, to satisfy the requirement for such publications, (B) notice to the offering Banco de la República concerning the external indebtedness represented by the Securities and sale (C) in accordance with External Resolution No. 13 of November 23, 2012, issued by the Board of Governors of the Notes Central Bank of Colombia, the delivery of written information from the Director General of Public Credit and the application National Treasury of the proceeds thereofMinisterio de Hacienda y Crédito Público to the Board of Governors of the Central Bank of Colombia regarding the proposed issuance of the Securities, will not each of which shall be an “investment company,” as such term is defined in effected on or prior to the Investment Company Act of 1940, as amendedClosing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, subject to the terms, conditions, limitations or exceptions under (i) Article 177 of the Colombian Administrative Code (Código Contencioso Administrativo) applicable to administrative or judicial proceedings initiated before July 2, 2012; (ii) Articles 192, 195, 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo) applicable to administrative or judicial proceedings initiated on or after July 2, 2012; and (iii) Articles 684 and 513 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), (which will be abrogated by Articles 593, 594 and 595 et al of Law 1564 of 2012 (Código General del Proceso) effective as of January 1, 2014) and Article 19 of Decree 111 of January 15, 1996, pursuant to which the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur”, subject to the provisions of (i) Article 693 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), which will be abrogated by article 605 of Law 1564 of 2012 (Código General del Proceso) effective as of January 1, 2014), which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic; and (ii) subject to compliance with the provisions of Article 694 and 695 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), (which will be abrogated by articles 606 and 607, respectively, of Law 1564 of 2012 (Código General del Proceso) effective as of January 1, 2014). The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus and any further amendments and supplements theretoProspectus, as applicableamended or supplemented, made and their filing with the Commission have been duly authorized by and on behalf of the Company prior to the Time of Delivery (other than the financial statements Republic, and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements amended, has been duly executed by and on behalf of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicableRepublic, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained information in the Registration Statement, the Pricing Disclosure Package or as amended, and the Prospectus, such counsel shall confirm that he as amended or supplemented, stated on the authority of public officials of the Republic has no reason to believe that:been stated in their official capacities thereunto duly authorized;
(1xvii) each part of The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of its effective dateColombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Registration Statement, at the respective times each part became effective, contained 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;
(2B) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted No information has come to state any material fact necessary in order such counsel’s attention that causes such counsel to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) believe that the Prospectus, as of its date and as of the date hereofthereof or on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; orand
(4C) any amendment No information has come to the Registration Statement is required to be filed or such counsel’s attention that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, causes such counsel need not express to believe that the documents specified in a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect schedule to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to counsel’s letter, consisting of those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions Package, as of the first sentence Applicable Time, contained any untrue statement of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking fact or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of omitted to state any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.material
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Republic made in any certificates pursuant to the provisions hereof, to the performance by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereofof this Agreement; the and any final term sheet contemplated by Section 5(A)(a4(a) hereof, and any other material required to be filed by the Company Republic pursuant to Rule 433(d) under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.;
(b) King & Spalding LLP, counsel for The Head or Acting Head of the Company, Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Underwriters an opinion or opinionsRepresentatives such counsel’s written opinion, dated the Closing Date, to the effect that:
(i) This Agreement The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly Republic and validly authorizedthe Agreements constitute legal, executed and delivered by the Company and constitutes a valid and binding agreement obligations of the Company, Republic enforceable in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iiiiv) The issuance, execution and delivery of the Notes Securities have been duly and validly authorized by the Company and, when authenticated by the Indenture Trusteeauthorized, executed, issued and delivered by the Republic in accordance with the manner provided in Fiscal Agency Agreement, and, assuming due authentication and delivery by the Indenture will Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and Republic enforceable against the Company in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries Securities) of the matters set forth therein Republic that will rank equal in right of payment with all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel other present and future unsecured and unsubordinated External Indebtedness of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersRepublic;
(vi) The There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of this Agreementany of the Agreements, the issuance and sale issue of the Notes, and the consummation of the transactions and performance of the obligations Securities as contemplated herein and therein contemplated will not conflict with in the Prospectus, or result in a breach the performance or violation observance by the Republic of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Agreements or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesSecurities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the issuance due execution, delivery and sale performance by the Republic of any of the Notes Agreements or the consummation Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Decree No. 2681 of December 29, 1993, (VI) Resolution No. 2797 dated August 8, 2006 of the Ministerio de Hacienda y Crédito Público, (VII) CONPES Document No. 3317 MINHACIENDA, DNP:SC, dated November 29, 2004, (VIII) the Certificate dated December 7, 2005, issued by the Company Technical Secretariat of the transactions contemplated by this AgreementInterparliamentary Commission of Public Credit, except such as have been obtained under the Act in accordance with article 7 of Decree 2757 of 2005 and such consents(IX) External Resolution No. 8 dated November 19, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution 2004 of the Notes by Board of Governors of the UnderwritersCentral Bank of Colombia (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) The Company To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not andnecessary that any Agreement or the Securities be registered, after giving effect recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit and the National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 2797 dated August 8, 2006 issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) a summary of the Agreements in the Diario Unico de Contratación Pública of the Republic, to satisfy the requirement for such publications, (B) notice to the offering Banco de la República concerning the external indebtedness represented by the Securities and sale (C) in accordance with External Resolution No. 8 of November 19, 2004, issued by the Junta Directiva del Banco de la República, the delivery of written information from the Director General of Public Credit of the Notes and Ministerio de Hacienda y Crédito Público to the application Junta Directiva del Banco de la República regarding the proposed issuance of the proceeds thereofSecurities, will not each of which shall be an “investment company,” as such term is defined in effected on or prior to the Investment Company Act of 1940, as amendedClosing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that, the Securities are held by a non-resident and non-domiciliary of the Republic.
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process; provided, that, except as provided under Article 177 of the Código Contencioso Administrativo of the Republic, which does not override Articles 684 or 513 of the Código de Procedimiento Civil and Article 19 of Decree 111 of January 15, 1996 of the Republic, the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 15 hereof, Section 18 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur”, subject to the provisions of Article 693 of the Código de Procedimiento Civil which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic and subject to compliance with the provisions of Article 694 of the Código de Procedimiento Civil. The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus and any further amendments and supplements theretoProspectus, as applicableamended or supplemented, made and their filing with the Commission have been duly authorized by and on behalf of the Company prior to the Time of Delivery (other than the financial statements Republic, and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements amended, has been duly executed by and on behalf of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicableRepublic, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained information in the Registration Statement, the Pricing Disclosure Package or as amended, and the Prospectus, such counsel shall confirm that he as amended or supplemented, stated on the authority of public officials of the Republic has no reason to believe that:been stated in their official capacities thereunto duly authorized;
(1xvii) each part of The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of its effective dateColombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Registration Statement, at the respective times each part became effective, contained 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;
(2B) No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof or on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Pricing Disclosure Package, as of the Applicable Time, contained an any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) . Such counsel may state that he or she is not passing upon and does not assume any responsibility for the Prospectusaccuracy, as of its date and as completeness or fairness of the date hereof, statements contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
Prospectus (4) any amendment except to the Registration Statement is required to be filed or extent expressly set forth in (xvii) above) and that there are any contracts or other documents such counsel makes no representation that such counsel has independently verified the accuracy, completeness and fairness of a character required to be filed such statements (except as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1aforesaid), and that such counsel’s opinions referred to in this subsection (2)b) are limited to matters of Colombian law and, (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters insofar as the Underwriters opinion required by this subsection (b) is affected by matters of United States or New York law, it may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, be given in reliance upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
required by subsection (e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (fc) of this Section 7 and that, insofar as to such other matters as you may reasonably request.the foregoing opi
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “Certain United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1i) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2ii) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3iii) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4iv) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1i), (2ii), (3iii) and (4iv) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any the Statement of Eligibility on Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, Delivery is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.
(k) The Underwriters shall have received a certificate of the Chief Financial Officer of the Company, dated the date of delivery thereof, in form and substance satisfactory to the Underwriters, to the effect set forth in Annex II.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters Underwriters, as to purchase Securities to be purchased at the Notes Time of Delivery, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and at and as of the Closing DateTime of Delivery, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof); the final term sheet contemplated by Section 5(A)(a) hereof), and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.;
(b) King & Spalding LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, shall have furnished to you such written opinion or opinions, dated the Closing DateTime of Delivery, in form and substance satisfactory to you, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP , and such counsel shall have received such papers and information as they may rely reasonably request to enable them to pass upon such matters;
(ic) The Company’s Senior Corporate Counsel or such other internal counsel as to those matters that relate shall be reasonably acceptable to the Indenture Trustee, upon Underwriters (the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c“Internal Counsel”), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letterssuch counsel’s written opinion, to the effect set forth in Annex II(A), dated the respective dates Time of delivery thereofDelivery, in form and substance satisfactory to you;
(d) ▇▇▇▇▇▇▇ LLP, Maryland counsel for the Company, shall have furnished to you their written opinion, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration StatementII(B), and as of dated the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, form and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees substance satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.you;
Appears in 1 contract
Sources: Underwriting Agreement (Huntington Bancshares Inc/Md)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Depositary Shares shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance in all material respects by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a5(a) hereof; the final term sheet contemplated by Section 5(A)(a5(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfactionwith.
(b) King & Spalding LLP, counsel for the Company, The Company shall have furnished to the Underwriters an opinion or opinionsRepresentative a certificate, dated the Closing Date, of the Company, signed by the principal financial or accounting officer of the Company, to the effect that, to the best of his knowledge after reasonable investigation:
(i) This The representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has been duly authorizedcomplied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date, executed and delivered by the Companyin all material respects;
(ii) The Indenture No stop order suspending the effectiveness of the Registration Statement or any part thereof or suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus has been duly issued and validly authorized, executed no proceedings for that purpose have been instituted and delivered by the Company and constitutes a valid and binding agreement are pending or have been threatened as of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Actsuch date;
(iii) The issuance, execution and delivery Since the date of the Notes have most recent financial statements included or incorporated by reference in the Pricing Prospectus, there has been duly no material adverse change in the financial position, results of operations, cash flows or prospects relating thereto of the Company and validly authorized its subsidiaries consolidated, except as set forth in or contemplated by the Company Prospectus; and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth On or after the Applicable Time, (A) no downgrading has occurred in the Pricing Disclosure Package rating accorded the Company’s unsecured debt securities or preferred stock as described in Section 7(h)(i) and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(vB) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions no announcement has been made with respect thereto, constitute accurate summaries of to any rating accorded the matters set forth therein Company’s unsecured debt securities or preferred stock or the Depositary Shares as described in all material respectsSection 7(h)(ii).
(c) The Company shall have furnished to the Underwriters an the opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esq., Senior Vice President and Deputy General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amendedNorth Carolina, with corporate power and authority under such laws to own its properties and to conduct its business as described in the Prospectus;
(ii) The Company has an shares of Preferred Stock represented by the Depositary Shares being delivered to the Underwriters at the Closing Date have been duly authorized capitalization and, when issued and delivered as provided in this Agreement, will be duly and validly issued, fully paid and nonassessable, and will have the rights set forth in the ProspectusCompany’s Articles of Incorporation, and all of as amended to the issued shares of capital stock of Closing Date, including the Company have been duly and validly authorized and issued and are fully paid and non-assessableAmendment;
(iii) The Company has been duly qualified as a foreign corporation for all corporate power and authority necessary to execute and deliver this Agreement, the transaction of business Preferred Stock, the Depositary Shares and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as Deposit Agreement and has all such power and authority to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank perform its obligations hereunder and thereunder; this Agreement has been duly incorporated authorized, executed and is validly existing as delivered by the Company; the execution, delivery and performance of this Agreement, the Preferred Stock, the Depositary Shares and the Deposit Agreement by the Company and compliance with the provisions hereof and thereof by the Company will not constitute a corporation in good standing under breach of or default under, the corporate charter or by-laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liensor any material agreement, encumbrances, equities indenture or claims;
(v) To other instrument relating to indebtedness for money borrowed known to such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending counsel to which the Company or any of its subsidiaries is a party party, or, to the best of such counsel’s knowledge, any law, order, rule, regulation or decree of which any court, governmental agency or authority located in the United States having jurisdiction over the Company or any property of the Company Company, which breach or any of its subsidiaries is the subject which is default would be reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, subsidiaries taken as a whole; and to the best of such counsel’s knowledge, no consent, authorization or order of, or filing or registration with, any court or governmental agency or authority is required for the execution, delivery and performance of this Agreement, the Preferred Stock, the Depositary Shares and the Deposit Agreement by the Company except such as may be required under applicable state securities or “blue sky” laws or as have been duly made or obtained;
(iv) The Amendment has been duly filed with the Secretary of State of the State of North Carolina in accordance with the North Carolina Business Corporation Act and with all other governmental authorities where such filing is required in order to be effective under North Carolina law;
(v) The Depositary Shares being delivered to the Underwriters at the Closing Date have been duly authorized and, when issued and delivered against payment therefor as provided in this Agreement, will be duly and validly issued and will be entitled to the rights under, and the benefits of, the Deposit Agreement;
(vi) The Deposit Agreement has been duly authorized, executed and delivered by the Company and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution the Depositary and delivery of this Agreement, the issuance constitutes a valid and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan legally binding agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subjectand, nor will to such actions result in any violation of counsel’s knowledge, the provisions of the Restated Certificate of IncorporationDepositary, as amended, or By-laws of enforceable against the Company or the organizational documents of SunTrust Bank or any statute or any orderand, rule or regulation known to such counsel counsel’s knowledge, the Depositary in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any creditors’ rights generally and by general principles of their propertiesequity;
(vii) No consentThe Preferred Stock, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance Depositary Shares and sale of the Notes or Deposit Agreement conform in all material respects to the consummation by descriptions thereof in the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;Prospectus; and
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery Closing Date (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statementtherein, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need does not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package Prospectus or the Prospectus, such counsel shall confirm that except for those referred to in the opinion in paragraphs (ii), (iii) and (vi) of this Section 7(c), he has no reason to believe that:
(1i) each that any part of the Registration StatementStatement or any further amendment thereto made by the Company prior to the Closing Date (other than the financial statements and other financial data contained therein, as of its effective dateto which such counsel need express no opinion), when such part or amendment became effective, contained 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;
; (2ii) that the Pricing Disclosure Package, as of the Applicable Time, contained an any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
; or (3iii) the Prospectusthat, as of its date and as of the date hereofClosing Date, the Prospectus or any further amendment or supplement thereto made by the Company prior to the Closing Date (other than the financial statements and other financial data contained therein, as to which such counsel need express no opinion) contained or contains an untrue statement of a material fact or omitted or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) and such counsel does not know of any amendment to the Registration Statement is required to be filed or that there are of any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement Statement, the Effective Date Prospectus or the Prospectus which that are not filed or incorporated by reference or described as required; except that, with respect . As to clauses (1), (2), (3) and (4) abovematters governed by New York law, such counsel need not express a belief with respect to may rely upon the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP.
(d) The Underwriters Representative shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters Representative may reasonably require. As to matters governed by North Carolina law, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇, ▇▇., Esq., Senior Vice President and Deputy General Counsel of the Company, delivered pursuant to Section 6(b) and 6(c7(c), respectively.
(e) At On the Applicable Time and at Closing Date, KPMG LLP, as independent accountants of the Time of DeliveryCompany, Ernst & Young LLP shall have furnished to you the Representative a letter or lettersletter, dated the respective dates of delivery thereof, on such date and in form and substance reasonably satisfactory to youthe Representative, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the effect set forth in Annex I (a form financial statements and certain financial information contained or incorporated by reference into the Prospectus, and confirming that they are independent accountants within the meaning of the executed copy Act and the Exchange Act, and the respective applicable published rules and regulations of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b))Commission thereunder.
(f) Neither Subsequent to the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fireApplicable Time, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or occurred any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, long-term debt, stockholders’ equity or results of operations of the Company and its subsidiariesconsolidated subsidiaries that the Representative concludes, otherwise than as set forth or contemplated in after consultation with the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii)Company, is in the judgment of the Representatives so material and adverse as to make it impracticable impractical or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner Depositary Shares as contemplated in the Pricing Disclosure Package or by the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect furnished to the furnishing of prospectuses on Representative such further information, certificates and documents as they may reasonably request prior to the business day next succeeding the date of this AgreementClosing Date.
(h) On or after the Applicable Time Time, (i) no downgrading shall have occurred in the rating accorded the Company’s unsecured debt securities or preferred stock by any “nationally recognized statistical rating organization,” ”, as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch surveillance or review, with possible negative implications, its rating of any of the Company’s unsecured debt securities or preferred stock.
(i) On or after The Company shall have complied with the Applicable Time there shall not have occurred any provisions of the following: (ifirst sentence of Section 5(e) a suspension or material limitation in trading in securities generally hereof with respect to the furnishing of prospectuses on the New York Stock Exchange; (ii) a suspension business day next succeeding the date of this Agreement. If any of the conditions specified in this Section 7 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 limitation respects reasonably satisfactory in trading in form and substance to the Company’s securities on Representative and their counsel, this Agreement and all obligations of the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal Underwriters hereunder may be cancelled at, or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in at any time prior to, the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration Closing Date by the United States Representative. Notice of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable cancellation shall be given to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance in writing or by the Company of all of its respective obligations hereunder to be performed at telephone or prior to such time, as to the matters set forth telegraph confirmed in subsections (a) and (f) of this Section and as to such other matters as you may reasonably requestwriting.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Republic made in any certificates pursuant to the provisions hereof, to the performance by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereofof this Agreement; the and any final term sheet contemplated by Section 5(A)(a4(a) hereof, and any other material required to be filed by the Company Republic pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for The Head or Acting Head of the Company, Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Underwriters an opinion or opinionsRepresentatives such counsel’s written opinion, dated the Closing Date, to the effect that:
(i) This Agreement The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly Republic and validly authorizedthe Agreements constitute legal, executed and delivered by the Company and constitutes a valid and binding agreement obligations of the Company, Republic enforceable in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iiiiv) The issuance, execution and delivery of the Notes Securities have been duly and validly authorized by the Company and, when authenticated by the Indenture Trusteeauthorized, executed, issued and delivered by the Republic in accordance with the manner provided in Indenture, and, assuming due authentication and delivery by the Indenture will Trustee, the Securities constitute legal, valid and binding obligations of the Company, Republic enforceable in accordance with their terms entitled to the benefits of provided by the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equityIndenture;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries Securities) of the matters set forth therein Republic that will rank equal in right of payment with all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel other present and future unsecured and unsubordinated External Indebtedness of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersRepublic;
(vi) The There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of this Agreementany of the Agreements, the issuance and sale issue of the Notes, and the consummation of the transactions and performance of the obligations Securities as contemplated herein and therein contemplated will not conflict with in the Prospectus, or result in a breach the performance or violation observance by the Republic of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Agreements or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesSecurities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the issuance due execution, delivery and sale performance by the Republic of any of the Notes Agreements or the consummation by Securities, (B) the Company validity or enforceability against the Republic of any of the transactions contemplated by this AgreementAgreements or the Securities, or (C) the issue, sale or delivery of the Securities, except such as have been obtained under for (I) Law 533 of November 11, 1999, (II) the Act and such consentssurviving portions of Law 185 of January 27, approvals1995 which were not repealed or amended by Law 533 of November 11, authorizations1999, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with (III) the purchase and distribution relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Law 1366 of December 21, 2009, (VI) Law 1624 of April 29, 2013, (VII) Decree No. 2681 of December 29, 1993, (VIII) Resolution No. [—] dated [—] of the Notes Ministerio de Hacienda y Crédito Público, (IX) CONPES Document No. [—] DNP:SC-DEE MINHACIENDA, dated [—], (X) Authorization by Act of the UnderwritersComisión Interparlamentaria de Crédito Público adopted in its meeting held on [—] and (XI) External Resolution No. [—] dated [—] of the Board of Governors of the Central Bank of Colombia (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) The Company To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not andnecessary that any Agreement or the Securities be registered, after giving effect recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General or Acting Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. [—] dated [—] issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) the publication of the Agreements in the Sistema Electrónico de Contratación Pública-SECOP of the Republic, to satisfy the requirement for such publications, (B) notice to the offering Banco de la República concerning the external indebtedness represented by the Securities and sale (C) in accordance with External Resolution No. [—] of [—], issued by the Board of Governors of the Notes Central Bank of Colombia, the delivery of written information from the Director General of Public Credit and the application National Treasury of the proceeds thereofMinisterio de Hacienda y Crédito Público to the Board of Governors of the Central Bank of Colombia regarding the proposed issuance of the Securities, will not each of which shall be an “investment company,” as such term is defined in effected on or prior to the Investment Company Act of 1940, as amendedClosing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, subject to the terms, conditions, limitations or exceptions under (i) Articles 192, 195, 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo); and (ii) Articles 684 and 513 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), (which will be gradually superseded by Articles 593, 594 and 595 et al subject to the entry into force of Law 1564 of 2012 (Código General del Proceso) pursuant to the terms of article 627, paragraph 6 thereof) and Article 19 of Decree 111 of January 15, 1996, pursuant to which the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Indenture and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 9.7(b) of the Indenture and Section 15(b) of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 9.7(b) of the Indenture and Section 15(b) of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Indenture and the Securities as provided in Section 15 hereof, Section 9.7(a) of the Indenture and Section 15(a) of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 9.7(b) of the Indenture and Section 15(b) of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur,” subject to the provisions of (i) Article 693 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), which will be gradually superseded by article 605 (et al) subject to the entry into force of Law 1564 of 2012 (Código General del Proceso) pursuant to the terms of article 627, paragraph 6 thereof), which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic; and (ii) subject to compliance with the provisions of Article 694 and 695 of the Colombian Civil Procedure Code (Código de Procedimiento Civil), (which will be gradually superseded by articles 606 and 607, respectively, subject to the entry into force of Law 1564 of 2012 pursuant to the terms of article 627, paragraph 6 thereof). The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus and any further amendments and supplements theretoProspectus, as applicableamended or supplemented, made and their filing with the Commission have been duly authorized by and on behalf of the Company prior to the Time of Delivery (other than the financial statements Republic, and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements amended, has been duly executed by and on behalf of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicableRepublic, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained information in the Registration Statement, the Pricing Disclosure Package or as amended, and the Prospectus, such counsel shall confirm that he as amended or supplemented, stated on the authority of public officials of the Republic has no reason to believe that:been stated in their official capacities thereunto duly authorized;
(1xvii) each part of The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Indenture, insofar as matters of its effective dateColombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Registration Statement, at the respective times each part became effective, contained 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;
(2B) No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof or on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Pricing Disclosure Package, as of the Applicable Time, contained an any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.S
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Republic made in any certificates pursuant to the provisions hereof, to the performance by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof or the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereofof this Agreement; the and any final term sheet contemplated by Section 5(A)(a4(a) hereof, and any other material required to be filed by the Company Republic pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for The Head or Acting Head of the Company, Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Underwriters an opinion or opinionsRepresentatives such counsel’s written opinion, dated the Closing Date, to the effect that:
(i) This Agreement The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly Republic and validly authorizedthe Agreements constitute legal, executed and delivered by the Company and constitutes a valid and binding agreement obligations of the Company, Republic enforceable in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iiiiv) The issuance, execution and delivery of the Notes Securities have been duly and validly authorized by the Company and, when authenticated by the Indenture Trusteeauthorized, executed, issued and delivered by the Republic in accordance with the manner provided in Indenture, and, assuming due authentication and delivery by the Indenture will Trustee, the Securities constitute legal, valid and binding obligations of the Company, Republic enforceable in accordance with their terms entitled to the benefits of provided by the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equityIndenture;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries Securities) of the matters set forth therein Republic that will rank without any preference among themselves and equal in right of payment with all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel other present and future unsecured and unsubordinated External Indebtedness of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersRepublic;
(vi) The There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of this Agreementany of the Agreements, the issuance and sale issue of the Notes, and the consummation of the transactions and performance of the obligations Securities as contemplated herein and therein contemplated will not conflict with in the Prospectus, or result in a breach the performance or violation observance by the Republic of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Agreements or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesSecurities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the issuance due execution, delivery and sale performance by the Republic of any of the Notes Agreements or the consummation by Securities, (B) the Company validity or enforceability against the Republic of any of the transactions contemplated by this AgreementAgreements or the Securities, or (C) the issue, sale or delivery of the Securities, except such as have been obtained under for (I) Article 16 (c) and (h) of Law 31 of 1992, (II) Law 533 of November 11, 1999, (III) the Act and such consentssurviving portions of Law 185 of January 27, approvals1995 which were not repealed or amended by Law 533 of November 11, authorizations1999, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with (IV) the purchase and distribution relevant portions of Law 80 of October 28, 1993, (V) Law 781 of December 20, 2002, (VI) Law 1366 of December 21, 2009, (VII) Law 1624 of April 29, 2013, (VIII) Law 1771 of December 30, 2015, (IX) Decree No. 1068 of May 26, 2015, (X) Resolution No. 2275 dated August 1, 2017 of the Notes Ministerio de Hacienda y Crédito Público; (XI) CONPES Document No. 3865 DNP, MINHACIENDA, dated July 14, 2016; (XII) Authorization by Act of the UnderwritersComisión Interparlamentaria de Crédito Público adopted in its meeting held on June 15, 2016, and (XIII) Authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meetings held on June 14, 2017 and June 20, 2017; (each of which shall be listed in such counsel’s legal opinion and copies of which shall be furnished to counsel to the Underwriters on the Closing Date);
(viii) The Company To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not andnecessary that any Agreement or the Securities be registered, after giving effect recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General or Acting Director General of Public Credit and National Treasury of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 2275 dated August 1, 2017, issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) the publication of the Underwriting Agreement in the Sistema Electrónico de Contratación Pública-SECOP of the Republic, to satisfy the requirement for such publications, (B) filing of information before the Colombian Central Bank (Banco de la República) of public external indebtedness report on Form No. 6 (Formulario 6), resulting from the issuance of the Securities under the Indenture each of which shall be effected on or prior to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amendedClosing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that the Securities are held by a non-resident and non-domiciliary of the Republic;
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process, subject to the terms, conditions, limitations or exceptions under (i) Articles 192, 195, 298 and 299 of Law 1437 of 2011 (Código de Procedimiento Administrativo y de lo Contencioso Administrativo); and (ii) Articles 593, 594 and 595 et al of Law 1564 of 2012 (Código General del Proceso) which entered into force on January 1, 2016, pursuant to the terms of Acuerdo No. PSAA15-10392, of October 1, 2015, issued by the Colombian Council of the Judiciary (Consejo Superior de la Judicatura) and Article 19 of Decree 111 of January 15, 1996, pursuant to which the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 16 hereof and in the Indenture and the Securities and the appointment of the Authorized Agent in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Indenture and the Securities as provided in Section 15 hereof, Section 9.7(a) of the Indenture and Section 16(a) of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 16 hereof, Section 9.7(b) of the Indenture and Section 16(b) of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur,” subject to the provisions of (i) Article 605 (et al) of Law 1564 of 2012 (Código General del Proceso) which entered into force on January 1, 2016, pursuant to the terms of Acuerdo No. PSAA15-10392, of October 1, 2015, issued by the Colombian Council of the Judiciary (Consejo Superior de la Judicatura) and which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic; and (ii) subject to compliance with the provisions of Articles 606 and 607 of Law 1564 of 2012 (Código General del Proceso) which entered into force on January 1, 2016, pursuant to the terms of Acuerdo No. PSAA15-10392, of October 1, 2015, issued by the Colombian Council of the Judiciary (Consejo Superior de la Judicatura). The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic other than those governing judicial procedures, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly legalized copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus and any further amendments and supplements theretoProspectus, as applicableamended or supplemented, made and their filing with the Commission have been duly authorized by and on behalf of the Company prior to the Time of Delivery (other than the financial statements Republic, and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements amended, has been duly executed by and on behalf of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicableRepublic, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained information in the Registration Statement, the Pricing Disclosure Package or as amended, and the Prospectus, such counsel shall confirm that he as amended or supplemented, stated on the authority of public officials of the Republic has no reason to believe that:been stated in their official capacities thereunto duly authorized;
(1xvii) each part of The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Indenture, insofar as matters of its effective dateColombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Registration Statement, at the respective times each part became effective, contained 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;
(2B) No information has come to such counsel’s attention that causes such counsel to believe that the Prospectus, as of the date thereof or on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and
(C) No information has come to such counsel’s attention that causes such counsel to believe that the documents specified in a schedule to such counsel’s letter, consisting of those included in the Pricing Disclosure Package, as of the Applicable Time, contained an any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained . Such counsel may state that he or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, she is not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, passing upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.an
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and the Closing Dateeach Time of Delivery, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing DateTime of Delivery, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has Securities being issued and delivered at such Time of Delivery have been duly and validly authorized, executed and, when issued and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its termsthis Agreement, subjectwill be validly issued, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer fully paid and similar laws affecting the rights and remedies of creditors generallynon-assessable, and the effects issuance of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Actsuch Securities will not be subject to any preemptive or similar rights;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption captions “Dividend Policy” and “Description of the Notes” Capital Stock”, insofar as these statements they purport to describe the provisions of the documents referred Company’s Restated Articles of Incorporation, amended Bylaws or an agreement or contract to thereinwhich the Company is a party, constitute an accurate summary of the matters set forth therein in all material respects; and
(viv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “Certain United States Federal Tax Consequences to Non-U.S. Holders of NotesCommon Stock” and “Employee Retirement Income Security Act,” ”, insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.;
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing DateTime of Delivery, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The authorized capital stock of the Company has an authorized capitalization conforms as set forth to legal matters to the description thereof contained in the ProspectusProspectus and the Pricing Disclosure Package, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the NotesSecurities at each Time of Delivery, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes Securities or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes Securities by the Underwriters;
(viii) The Company is not and, after giving effect to the offering issuance and sale of the Notes Securities and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1i) each any part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2ii) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3iii) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4iv) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1i), (2ii), (3iii) and (4iv) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Statements of Eligibility on Form T-1.
(d) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Dateas of each Time of Delivery, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP delivered pursuant to Section 6(b) and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇, General Counsel of the Company, delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the such Time of Delivery, PricewaterhouseCoopers LLP and Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I hereto (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, Delivery is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes Securities on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading There shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Companylong-term senior unsecured debt of the Company or any of its subsidiaries by ▇▇▇▇▇’▇ Investors Service, Inc. or Standard & Poor’s debt securities or preferred stockRatings Services.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes Securities on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Securities being delivered at the applicable Time of Delivery shall have been duly listed, subject to notice of issuance, on the New York Stock Exchange.
(k) The Common Stock shall be an “actively-traded security” excepted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.
(l) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.
(m) The “lock-up” agreements, each substantially in the form of Annex II hereto, between you and executive officers (as defined in Rule 16a-1(f) of the Exchange Act) and directors of the Company shall be delivered to you prior to the First Time of Delivery.
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Securities shall be subject to the accuracy of the representations and warranties on the part of the Company Republic contained herein herein, both (i) on, and as of the Applicable Timethough made on, the date hereof and (ii) on, and as though made on, the Closing Date, to the accuracy of the statements of the Company Republic made in any certificates pursuant to the provisions hereof, to the performance by the Company Republic of its obligations hereunder performable prior to the Closing Date and to the following additional conditions:
(a) The Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, or any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or threatened; any request of the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives; and the Prospectus shall have been filed with the Commission pursuant to the applicable provision of Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfactionthis Agreement.
(b) King & Spalding LLP, counsel for The Head or Acting Head of the Company, Legal Affairs Group of the Dirección General de Crédito Público y Tesoro Nacional of the Ministerio de Hacienda y Crédito Público of the Republic shall have furnished to the Underwriters an opinion or opinionsRepresentatives such counsel’s written opinion, dated the Closing Date, to the effect that:
(i) This Agreement The Republic has full power and authority to execute and deliver the Agreements and the Securities, to incur the obligations to be incurred by it as provided herein and therein, and to perform and observe the provisions hereof and thereof on its part to be performed or observed;
(ii) The execution, delivery and performance by the Republic of the Agreements and the Securities have been duly authorized by all necessary action on its part and by all necessary constitutional, legislative, executive, administrative and other governmental action;
(iii) The Agreements have been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly Republic and validly authorizedthe Agreements constitute legal, executed and delivered by the Company and constitutes a valid and binding agreement obligations of the Company, Republic enforceable in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iiiiv) The issuance, execution and delivery of the Notes Securities have been duly and validly authorized by the Company and, when authenticated by the Indenture Trusteeauthorized, executed, issued and delivered by the Republic in accordance with the manner provided in Fiscal Agency Agreement, and, assuming due authentication and delivery by the Indenture will Fiscal Agent, the Securities constitute legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and Republic enforceable against the Company in accordance with its their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth obligations of the Republic under the Securities are or will at all times on and following the Closing Date be supported by the full faith and credit of the Republic and are or will at all times on and following the Closing Date be general, direct, unconditional, unsecured and unsubordinated External Indebtedness (as defined in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries Securities) of the matters set forth therein Republic that will rank equal in right of payment with all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel other present and future unsecured and unsubordinated External Indebtedness of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by othersRepublic;
(vi) The There is no constitutional provision, nor any provision of any treaty, convention, statute, law, regulation, decree, court order or similar authority binding upon the Republic, nor (to the best of such counsel’s knowledge) any provision of any contract, agreement or instrument to which the Republic or any Governmental Agency is a party, which would be contravened or breached in any material respect, or under which a material default would arise or a moratorium in respect of any obligations of the Republic or any Governmental Agency would be effected, as a result of the execution and delivery of this Agreementany of the Agreements, the issuance and sale issue of the Notes, and the consummation of the transactions and performance of the obligations Securities as contemplated herein and therein contemplated will not conflict with in the Prospectus, or result in a breach the performance or violation observance by the Republic of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company Agreements or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their propertiesSecurities;
(vii) No consent, approval (including exchange control approval), authorization, order, registration or qualification of or with any court or governmental agency or other regulatory body in the Republic is required for (A) the issuance due execution, delivery and sale performance by the Republic of any of the Notes Agreements or the consummation Securities, (B) the validity or enforceability against the Republic of any of the Agreements or the Securities, or (C) the issue, sale or delivery of the Securities, except for (I) Law 533 of November 11, 1999, (II) the surviving portions of Law 185 of January 27, 1995 which were not repealed or amended by Law 533 of November 11, 1999, (III) the relevant portions of Law 80 of October 28, 1993, (IV) Law 781 of December 20, 2002, (V) Decree No. 2681 of December 29, 1993, (VI) authorization by Act of the Comisión Interparlamentaria de Crédito Público adopted in its meeting held on January 19, 2005 (VII) Resolution No. 283 dated February 11, 2005 of the Ministerio de Hacienda y Crédito Público, (VIII) approval No. 3262 dated January 9, 2004 and approval No. 3317 of November 29, 2004 of the CONPES, and (X) External Resolutions No. 7 of November 14, 2003 and No. 8 of November 19, 2004, issued by the Company Board of Directors of the transactions contemplated by this Agreement, except Central Bank (each of which shall be listed in such as have been obtained under counsel’s written opinion and copies of which shall be furnished to counsel to the Act and such consents, approvals, authorizations, registrations Underwriters on or qualifications as may be required under state securities or Blue Sky laws in connection with prior to the purchase and distribution of the Notes by the UnderwritersClosing Date);
(viii) The Company To ensure the legality, validity, enforceability, priority or admissibility in evidence of each of the Agreements and the Securities in the Republic, it is not andnecessary that any Agreement or the Securities be registered, after giving effect recorded, published or filed with any court or other authority in the Republic or be notarized or that any documentary, stamp or similar tax be paid on or in respect of any such Agreements or the Securities, except for (A) the issuance by the Director General of Public Credit of the Ministerio de Hacienda y Crédito Público of a request for publication of (x) Resolution No. 283 of February 11, 2005, issued by the Ministerio de Hacienda y Crédito Público in the Diario Oficial of the Republic and (y) a summary of the Agreements in the Diario Unico de Contratación Pública of the Republic, to satisfy the requirement for such publications, (B) notice of the external indebtedness represented by the Securities to the offering Banco de la República and sale (C) in accordance with External Resolution No. 7 of November 14, 2003 and External Resolution No. 8 of November 19, 2004, issued by the Junta Directiva del Banco de la República, the delivery of written information from the Director General of Public Credit of the Notes and Ministerio de Hacienda y Crédito Público to the application Junta Directiva del Banco de la República regarding the proposed issuance of the proceeds thereofSecurities, will not each of which shall be an “investment company,” as such term is defined in effected on or prior to the Investment Company Act of 1940, as amendedClosing Date;
(ix) The Republic is empowered to issue the Securities. Any failure of the Republic to make the necessary or appropriate provisions in the National Annual Budget for the full and timely payment of any and all amounts due from the Republic under the Agreements and the Securities will not constitute a defense to enforcement of the obligations of the Republic under the Agreements or the Securities;
(x) There is no pending or, to such counsel’s knowledge after reasonable inquiry, threatened legal action or proceeding affecting the Republic or any Governmental Agency which (A) might individually or in the aggregate have a material adverse effect on the economic, fiscal or financial condition of the Republic or (B) purports to affect the legality, validity or enforceability of any of the Agreements;
(xi) To such counsel’s knowledge after reasonable inquiry, no event has occurred (and is continuing) which, had the Securities already been issued, would (with the giving of notice and/or the passage of time) constitute an Event of Default under the Securities (as defined therein);
(xii) There is no income, stamp or other tax, levy, impost, deduction or other charge imposed or levied (whether by withholding or otherwise) by the Republic or any Governmental Agency or other Colombian governmental, revenue or taxing authority or agency on or by virtue of the execution or delivery by the Republic of any Agreement or the Securities, the enforcement hereof or thereof against the Republic, or any payment to be made by the Republic, pursuant hereto or thereto; provided, that, the Securities are held by a non-resident and non-domiciliary of the Republic.
(xiii) Under the laws of the Republic, neither the Republic nor any of its property has any immunity from jurisdiction of any court or from set-off or any legal process; provided, that, except as provided under Article 177 of the Código Contencioso Administrativo, which does not override Articles 684 or 513 of the Código de Procedimiento Civil of the Republic, the revenues, assets and property of the Republic located in the Republic are not subject to execution, set-off or attachment. The waiver of immunity by the Republic contained in Section 15 hereof and in the Fiscal Agency Agreement and the Securities and the appointment of the Authorized Agent in Section 15 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, the consents by the Republic to the jurisdiction of the courts specified in Section 15 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities, and the provisions that the law of the State of New York shall govern this Agreement and the Fiscal Agency Agreement and the Securities as provided in Section 14 hereof, Section 18 of the Fiscal Agency Agreement and Section 16 of the Securities, are irrevocably binding on the Republic and service of process effected in the manner set forth in Section 15 hereof, Section 19 of the Fiscal Agency Agreement and Section 17 of the Securities will be effective, insofar as Colombian law is concerned, to confer valid personal jurisdiction over the Republic;
(xiv) The courts of the Republic would give effect to and enforce a judgment obtained in a court outside of the Republic through a procedural system provided for under Colombian law known as “exequatur”, subject to the provisions of Article 693 of the Código de Procedimiento Civil which requires that there be reciprocity in the recognition of foreign judgments between the courts of the relevant jurisdiction and the courts of the Republic and subject to compliance with the provisions of Article 694 of the Código de Procedimiento Civil. The pertinent provisions of such articles as they would affect a judgment obtained in a foreign court ordering payment of money by the Republic following a failure to pay amounts due and owing under the Agreements or the Securities are as follows: (A) the foreign judgment presented in the Republic for enforcement does not conflict with public order laws of the Republic, (B) the foreign judgment, in accordance with the laws of the country in which it was obtained, is final and a duly certified and authenticated copy has been presented to the court in the Republic, (C) no proceedings are pending in the Republic with respect to the same cause of action, and no final judgment has been awarded in the Republic in any proceeding on the same subject matter and between the same parties and (D) in the proceedings commenced in the foreign court which issued the judgment, the defendant was served in accordance with the law of such jurisdiction and in a manner reasonably designed to give an opportunity to the defendant to defend the action. Proceedings for execution of a money judgment by attachment or execution against any assets or property located in the Republic would be within the exclusive jurisdiction of Colombian courts. A judgment obtained in a foreign court ordering payment of money by the Republic under the Agreements or the Securities would not conflict with public order laws of the Republic;
(xv) Each of the Agreements is in proper legal form under the laws of the Republic for the enforcement thereof in the Republic against the Republic;
(xvi) The Registration Statement, as amended, and the Prospectus and any further amendments and supplements theretoProspectus, as applicableamended or supplemented, made and their filing with the Commission have been duly authorized by and on behalf of the Company prior to the Time of Delivery (other than the financial statements Republic, and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements amended, has been duly executed by and on behalf of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicableRepublic, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained information in the Registration Statement, the Pricing Disclosure Package or as amended, and the Prospectus, such counsel shall confirm that he as amended or supplemented, stated on the authority of public officials of the Republic has no reason to believe that:been stated in their official capacities thereunto duly authorized;
(1xvii) each part of The statements in the Registration Statement, as amended, and the Prospectus, as amended or supplemented, relating to the Securities and the Fiscal Agency Agreement, insofar as matters of its effective dateColombian law are concerned, and all other statements in the Registration Statement and the Prospectus with respect to or involving Colombian law are correct in all material respects;
(xviii) The Refrendación (Acknowledgment) of the Agreements and the Securities by the Contralor General de la República, pursuant to Law 42 of 1993, is not required under Colombian law for the due execution, delivery, performance, validity or enforceability of the Agreements or the Securities. The Contralor General de la República is required by law to acknowledge the Agreements and the Securities; provided, that, the Securities have been issued according to Colombian regulations and in compliance with all applicable requirements. The Securities have been so issued and the Agreements have been duly authorized and all necessary actions have been taken to comply with all applicable requirements. Pursuant to Colombian law and regulations, the failure by the Contralor General de la República to acknowledge the Agreements and the Securities will not affect the obligations of the Republic in respect of the Securities; and
(xix) In addition, such counsel shall have furnished the Underwriters with a letter, dated the Closing Date, to the effect that:
(A) No information has come to such counsel’s attention that causes such counsel to believe that the Registration Statement, at the time it became effective, contained 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;; and
(2B) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted No information has come to state any material fact necessary in order such counsel’s attention that causes such counsel to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) believe that the Prospectus, as of its date and as of the date hereofthereof or on the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state any a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
. Such counsel may state that he or she is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Prospectus (4) any amendment except to the Registration Statement extent expressly set forth in (xvii) above) and that such counsel makes no representation that such counsel has independently verified the accuracy, completeness and fairness of such statements (except as aforesaid), and that such counsel’s opinions referred to in this subsection (b) are limited to matters of Colombian law and, insofar as the opinion required by this subsection (b) is affected by matters of United States or New York law, it may be given in reliance upon the opinion required to be filed or that there are any contracts or other documents by subsection (c) of a character required to be filed this Section 6 and that, insofar as an exhibit the foregoing opinions relate to the Registration Statement legality, validity, binding effect or required to be incorporated by reference into enforceability of any agreement or obligation of the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) aboveRepublic, such counsel need not express a belief with respect has assumed that each party to such agreement or obligation other than the Republic has satisfied those legal requirements that are applicable to it to the financial statements and related schedules and other financial information contained therein, and with respect extent necessary to clause (i) above, make such counsel need not express a belief with respect to any Form T-1agreement or obligation enforceable against it.
(dc) The Underwriters shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, United States counsel for to the UnderwritersRepublic, such opinion or opinionsshall have furnished to the Representatives their written opinion, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates of such entities and (ii) as to matters governed by Georgia Law, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectively.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.that:
(i) On or after Assuming that the Applicable Time there shall not Securities have occurred any been duly authorized, executed, authenticated, issued and delivered against payment therefor, the Securities constitute valid, binding and enforceable obligations of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financialRepublic, political or economic conditions in the United States or elsewheresubject to applicable bankruptcy, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable insolvency and similar laws affecting creditors’ rights generally, to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus.
(j) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to such other matters as you may reasonably request.gener
Appears in 1 contract
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes under this Agreement shall be subject to the accuracy of the representations and warranties on the part of the Company contained set forth herein as of the Applicable Time, the date hereof and the Closing Date, to the accuracy and if applicable, as of the statements of the Company made in any certificates pursuant to the provisions hereofOption Closing Date, to the performance by the Company of its obligations hereunder hereunder, and to the following additional conditions, except to the extent expressly waived in writing by the Representatives:
(a) The Registration Statement and all post-effective amendments thereto shall have been declared effective by the Commission no later than 5:30 p.m. Eastern Time, on the date of this Agreement, or such later time as shall have been consented to by the Representatives, but in any event not later than 5:30 p.m. Eastern Time on the third full business day following the date hereof; if the Company omitted information from the Registration Statement at the time it became effective in reliance on Rule 430A under the Securities Act, the Prospectus shall have been filed with the Commission pursuant to in compliance with Rule 424(b) and Rule 430A under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a) hereof; the final term sheet contemplated by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration Statement or any part thereof amendment or supplement thereto shall have been issued and issued; no proceeding for that purpose the issuance of such an order shall have been initiated or threatened by shall be pending or, to the Commission and no notice of objection knowledge of the Commission to Company or the use of the Registration Statement Representatives, threatened or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened contemplated by the Commission; and all requests any request of the Commission for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) King & Spalding LLP, counsel for the Company, shall have furnished to the Underwriters an opinion or opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vi) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described included in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3otherwise) and (4) above, such counsel need not express a belief with respect shall have been disclosed to the financial statements Representatives and related schedules and other financial information contained therein, and complied with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1the Representatives' satisfaction.
(db) The Underwriters Shares shall have received been qualified or registered for sale, or subject to an available exemption from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPsuch qualification or registration, counsel for under the Underwriters, such opinion or opinions, dated the Closing Date, with respect to such matters as the Underwriters may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely (i) as to those matters that relate to the Indenture Trustee, upon the certificate or certificates Blue Sky Laws of such entities and (ii) jurisdictions as to matters governed shall have been reasonably specified by Georgia Law, upon the opinion of King & Spalding LLP Representatives and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectivelyoffering contemplated by this Agreement shall have been cleared by the NASD.
(ec) At Since the Applicable Time and at the Time of Delivery, Ernst & Young LLP shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I (a form of the executed copy of the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) and a form of the executed letter to be delivered on the effective date of any post-effective amendment to the Registration Statement, and as of the Time of Delivery, is attached as Annex I(b)).
(f) Neither the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Prospectus, and (ii) since the respective dates as of which information is given in the Pricing Prospectus there Registration Statement:
(i) There shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in the ability of the Company to conduct its business (whether by reason of any court, legislative, other governmental action, order, decree, or affecting otherwise), or in the general affairs, condition (financial and otherwise), business, prospects, properties, management, financial positionposition or earnings, stockholders’ equity or results of operations operations, or net worth of the Company and its subsidiariesCompany, otherwise than as set forth whether or contemplated not arising from transactions in the Pricing Prospectusordinary course of business; and
(ii) The Company shall not have sustained any loss or interference from any labor dispute, strike, fire, flood, windstorm, accident, or other calamity (whether or not insured) or from any court or governmental action, order, or decree; the effect of whichwhich on the Company, in any such case described in clause (ic)(i) or (ii)) above, is in the judgment reasonable opinion of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes Shares on the terms and in the manner contemplated in the Pricing Disclosure Package or Registration Statement and the Prospectus.
(gd) There shall have been furnished to the Representatives on the Closing Date and the Option Closing Date:
(i) An opinion of ▇▇▇▇▇▇ & Bird LLP, counsel to the Company, dated as of the Closing Date and any Option Closing Date, in form and substance substantially in the form attached hereto as Exhibit A; and
(ii) The opinion, dated the Closing Date and the Option Closing Date, of Hunton & ▇▇▇▇▇▇▇▇, counsel to the Underwriters, as to such matters as the Representatives shall reasonably request. In rendering the opinion specified in clauses (d)(i) and (ii) above, counsel may rely upon an opinion or opinions, each dated the Closing Date or the Option Closing Date as the case may be, of other counsel retained by them or the Company as to laws of any jurisdiction other than the United States, provided that (A) such reliance is expressly authorized by each opinion so relied upon and a copy of each such opinion is delivered to the Representatives, and (B) counsel shall have complied with state in its opinion that it believes that it and the provisions Underwriters are justified in relying thereon. Insofar as the above-referenced opinions involve factual matters, such counsel may rely, to the extent such counsel deems proper, upon certificates of officers of the first sentence Company and certificates of Section 5(A)(dpublic officials.
(e) hereof with respect At the time this Agreement is executed and also on the Closing Date and the Option Closing Date, as the case may be, there shall be delivered to the furnishing of prospectuses on Representatives a letter from ▇▇▇▇▇ ▇▇▇▇ PLLC, the business day next succeeding Company's independent accountants, the first letter to be dated the date of this Agreement.
(h) On or after , the Applicable Time (i) no downgrading shall have occurred in second letter to be dated the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the ActClosing Date, and (ii) no such organization the third letter to be dated the Option Closing Date, if any, which shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating be in form and substance reasonably satisfactory to the Representatives and shall contain information as of any a date within five days of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there date of such letter. There shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or been any change set forth in financial, political any letter referred to in this subsection (e) that makes it impracticable or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) inadvisable in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery purchase of the Notes on the terms and in the manner Shares as contemplated in the Pricing Disclosure Package or the Prospectushereby.
(jf) On the Closing Date and on the Option Closing Date, a certificate signed by the Chairman of the Board, the President, a Vice Chairman of the Board or any Executive or Senior Vice President and the principal financial officer or principal accounting officer of the Company, dated the Closing Date or the Option Closing Date, as the case may be, to the effect that the signers of such certificate have carefully examined the Registration Statement and this Agreement and that:
(i) The Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at in this Agreement are true and correct in all material respects on and as of such timethe Closing Date or the Option Closing Date, as to the performance by case may be, with the same effect as if made on the Closing Date or the Option Closing Date, as the case may be, and the Company of have complied in all of material respects with all the agreements and satisfied in all material respects all the conditions on its respective obligations hereunder part to be performed or satisfied at or prior to such timethe Closing Date or the Option Closing Date, as the case may be;
(ii) The Commission has not issued an order preventing or suspending the use of the Prospectus or any Preliminary Prospectus or any amendment thereto; no stop order suspending the effectiveness of the Registration Statement has been issued; and, to the matters knowledge of the respective signatories, no proceeding for that purpose has been instituted or is pending or contemplated under the Securities Act;
(iii) Each of the respective signatories of the certificate has carefully examined the Registration Statement, the Prospectus, and any amendments or supplements thereto, and such documents contain all material statements and information required to be made therein, and neither the Registration Statement nor any amendment or supplement thereto includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading and, since the date on which the Registration Statement was initially filed, no event has occurred that was required to be set forth in subsections an amended or supplemented prospectus or in an amendment to the Registration Statement that has not been so set forth; provided, however, that no representation need be made as to information contained in the Registration Statement or any amendment or supplement in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representatives specifically for inclusion therein; and
(aiv) Since the date on which the Registration Statement was initially filed with the Commission, there has not been any material adverse change or a development involving a prospective material adverse change in the business, properties, financial condition, or earnings of the Company, whether or not arising from transactions in the ordinary course of business, except as disclosed in the Registration Statement as heretofore amended or (but only if the Representatives expressly consent thereto in writing) as disclosed in an amendment or supplement thereto filed with the Commission and (f) delivered to the Representatives after the execution of this Agreement; since such date and except as so disclosed or in the ordinary course of business, the Company has not incurred any liability or obligation, direct or indirect, or entered into any transaction that is material to the Company not contemplated in the Prospectus; since such date and except as so disclosed there has not been any change in the outstanding capital stock of the Company, or any change that is material to the Company in the short-term debt or long-term debt of the Company; since such date and except as so disclosed, the Company has not incurred any material contingent obligations, and no material litigation is pending or, to the Company's knowledge, threatened against the Company; and, since such date and except as so disclosed, the Company has not sustained any material loss or interference from any strike, fire, flood, windstorm, accident or other calamity (whether or not insured) or from any court or governmental action, order, or decree.
(g) Prior to the Closing Date and any Option Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request in connection with the offering of the Shares. If any condition specified in this Section shall not have been fulfilled when and as required to such other matters as you be fulfilled, this Agreement may reasonably requestbe terminated by the Underwriters by notice from the Representatives to the Company at any time without liability on the part of any Underwriter, including the Representatives, or the Company, except for expenses to be paid by the Company pursuant to Section 7 hereof or reimbursed by the Company pursuant to Section 9 and except to the extent provided in Section 11.
Appears in 1 contract
Sources: Underwriting Agreement (Forsyth Capital Mortgage Corp)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes Bonds shall be subject subject, in the discretion of the Representatives, to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and the Closing Date, to the accuracy of the statements of the Company Company’s officers on and as of the Closing Date made in any certificates given pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereof; all filings (including, without limitation, the final term sheet contemplated Final Term Sheet) required by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) 433 under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for made, and no such filings by Rule 433shall have been made without the consent of the Representatives; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your the Representatives’ reasonable satisfaction.
(b) King & Spalding LLP, counsel for the Company, The Representatives shall have be furnished to the Underwriters an opinion or with opinions, dated the Closing Date, to the effect that:
of (i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President and Deputy General Counsel of Xcel Energy Inc., substantially in the form included as Exhibit A, (ii) Faegre & ▇▇▇▇▇▇ LLP, counsel for the Company, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described substantially in the Prospectus;
(ii) The Company has an authorized capitalization form included as set forth in the Prospectus, Exhibit B and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation ▇▇▇▇▇ Day LLP, Chicago, Illinois, counsel for the transaction of business and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;substantially in the form included as Exhibit C.
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vic) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York, New York, counsel for the Underwriters, such opinion or opinions, opinions dated the Closing Date, Date with respect to such matters as the Underwriters Representatives may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely , and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the President or any Vice President of the Company, dated the Closing Date, as to the matters set forth in paragraphs (a) and (h) of this Section 7 and to the further effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus and this Agreement and that, to the best of his or her knowledge:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to those matters that relate be performed or satisfied at or prior to the Indenture Trustee, upon the certificate or certificates of such entities and Closing Date; and
(ii) there has been no material adverse change in the condition of the Company and its subsidiaries taken as to matters governed a whole, financial or otherwise, or in the earnings, affairs or business prospects of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, from that set forth or contemplated by Georgia Lawthe Registration Statement, upon the opinion of King & Spalding LLP and most recent Preliminary Prospectus or the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c), respectivelyProspectus.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP The Representatives shall have furnished to you a letter or lettersreceived letters from Deloitte & Touche LLP, independent public accountants for the Company (dated the respective dates date of delivery thereofthis Agreement and Closing Date, respectively, and in form and substance satisfactory to you, the Representatives) advising that (i) they are an independent registered public accounting firm with respect to the effect set forth in Annex I (a form Company as required by the Act and published rules and regulations of the executed copy of Commission thereunder, (ii) in their opinion, the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) consolidated financial statements and a form of the executed letter to be delivered on the effective date of any post-effective amendment to supplemental schedules included or incorporated by reference in the Registration Statement, Preliminary Prospectus or Prospectus and covered by their opinion filed with the Commission under Section 13 of the Exchange Act comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the published rules and regulations of the Commission thereunder, (iii) that they have performed limited procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company, a reading of the minutes of meetings of the Board of Directors, committees thereof, and of the shareholder of the Company since the date of the most recent audited financial statements included or incorporated by reference in the Preliminary Prospectus or Prospectus, inquiries of officials of the Company responsible for financial accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such limited review and procedures nothing came to their attention that caused them to believe that: (A) any material modifications should be made to any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, Preliminary Prospectus or Prospectus for them to be in conformity with generally accepted accounting principles or any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, Preliminary Prospectus or Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the rules and regulations of the Commission applicable to Form 10-Q; and (B) with respect to the period subsequent to the date of the most recent financial statements included or incorporated by reference in the Prospectus and except as set forth in or contemplated by the Registration Statement, Preliminary Prospectus or Prospectus, there were any adverse changes, at a specified date not more than three business days prior to the date of the letter, in the capital stock of the Company, increases in long-term debt or decreases in stockholder’s equity or net current assets of the Company on a consolidated basis as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated by reference in the Prospectus, or for the period from the date of the most recent financial statements included or incorporated by reference in the Prospectus to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in operating revenues, operating income or net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; and (iv) they have carried out specified procedures performed for the purpose of comparing certain specified financial information and percentages (which is limited to financial information derived from general accounting records of the Company or, to the extent not so derived, from schedules prepared by Company officers responsible for such accounting records) included or incorporated by reference in the Registration Statement, Preliminary Prospectus and Prospectus with indicated amounts in the financial statements or accounting records of the Company and (excluding any questions of legal interpretation) have found such information and percentages to be in agreement with the relevant accounting and financial information of the Company referred to in such letter in the description of the procedures performed by them.
(f) Subsequent to the respective dates as of which information is given in the Registration Statement and the most recent Preliminary Prospectus, there shall not have been any adverse change or decrease specified in the letter dated as of the Time Closing Date referred to in paragraph (e) of Deliverythis Section 7 which makes it impractical or inadvisable in the judgment of the Representatives to proceed with the public offering or the delivery of the Bonds on the terms and in the manner contemplated by the Pricing Disclosure Package.
(g) Subsequent to the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Bonds or any other debt securities or preferred stock of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as such term is attached as Annex I(b)defined by the Commission for purposes of Rule 436(g)(2) under the Act (other than downgrades of debt issued by or on behalf of governmental entities and insured by third parties for the benefit of the Company) and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Bonds or of any other debt securities or preferred stock of or guaranteed by the Company (other than an announcement with positive implications of a possible upgrading and other than with respect to debt issued by or on behalf of governmental entities and insured by third parties for the benefit of the Company).
(fh) Neither the Company nor any of its Significant Subsidiaries shall have subsidiaries (i) shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing most recent Preliminary Prospectus any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or court or governmental action, order or decreedecree of any court, arbitrator or governmental or regulatory authority, otherwise than as set forth or contemplated in the Pricing most recent Preliminary Prospectus, and (ii) shall have incurred since the respective dates as date of which information is given this Agreement, any liabilities or obligations, direct or contingent, or entered into any transactions, not in the Pricing Prospectus ordinary course of business, which are material to the Company and its subsidiaries taken as a whole, and there shall not have been any change in the capital stock or long-term debt of the Company or any of its subsidiaries taken as a whole or any change, or any development involving a prospective change, in or affecting the general affairs, management, business, financial position, stockholders’ equity or stockholder’s equity, results of operations or prospects of the Company and its subsidiaries, subsidiaries taken as a whole otherwise than as set forth or contemplated in the Pricing most recent Preliminary Prospectus and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), ) above is in the judgment of the Representatives Underwriters so material and adverse as to make it impracticable or inadvisable to proceed with the public offering offering, sale or the delivery of the Notes Bonds on the terms and in the manner contemplated in the Pricing Disclosure Package or by this Agreement and the Prospectus.
(gi) The Company No Representative shall have complied with advised the provisions of Company that the first sentence of Section 5(A)(d) hereof with respect to the furnishing of prospectuses on the business day next succeeding the date of this Agreement.
(h) On or after the Applicable Time (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the ActRegistration Statement, and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch or review, with possible negative implications, its rating of any of the Company’s debt securities or preferred stock.
(i) On or after the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension or material limitation in trading in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which in the Prospectusopinion of counsel for the Underwriters is material or omits to state a fact which in the opinion of counsel for the Underwriters is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(j) The No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as the Closing Date, prevent the issuance or sale of the Bonds; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Bonds.
(k) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Indenture and this Agreement and the transactions contemplated hereby shall be reasonably satisfactory to counsel to the Underwriters, and prior to the Closing Date, the Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to Representatives such other matters customary information, certificates and documents as you they may reasonably request.
(l) The Company and Trustee shall have entered into the supplemental Indenture relating to the Bonds, and the Representatives shall have received counterparts, conformed as executed thereof, and the Bonds shall have been duly executed and delivered by the Company and authenticated by the Trustee. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be satisfactory in form and substance to the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing, or by telephone or facsimile transmission confirmed in writing.
Appears in 1 contract
Sources: Underwriting Agreement (Public Service Co of Colorado)
Conditions to the Obligations of the Underwriters. The obligations of the Underwriters to purchase the Notes shall be subject subject, in the discretion of the Representatives, to the accuracy of the representations and warranties on the part of the Company contained herein as of the Applicable Time, the date hereof and the Closing Date, to the accuracy of the statements of the Company Company’s officers on and as of the Closing Date made in any certificates given pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(A)(a4(a) hereof; all filings (including, without limitation, the final term sheet contemplated Final Term Sheet) required by Section 5(A)(a) hereof, and any other material required to be filed by the Company pursuant to Rule 433(d) 433 under the Act, Act shall have been filed with the Commission within the applicable time periods prescribed for made, and no such filings by Rule 433shall have been made without the consent of the Representatives; no stop order suspending the effectiveness of the Registration Statement or any part thereof or preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission and Commission; no notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have has been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or threatened received by the CommissionCompany; and all requests for additional information on the part of the Commission shall have been complied with to your the Representatives’ reasonable satisfaction.
(b) King & Spalding LLP, counsel for the Company, The Representatives shall have be furnished to the Underwriters an opinion or with opinions, dated the Closing Date, to the effect that:
(i) This Agreement has been duly authorized, executed and delivered by the Company;
(ii) The Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity; and the Indenture has been duly qualified under the Trust Indenture Act;
(iii) The issuance, execution and delivery of the Notes have been duly and validly authorized by the Company and, when authenticated by the Indenture Trustee, executed, issued and delivered in the manner provided in the Indenture will constitute valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws affecting the rights and remedies of creditors generally, and the effects of general principles of equity;
(iv) The statements set forth in the Pricing Disclosure Package and the Prospectus under the caption “Description of the Notes” insofar as these statements purport to describe the provisions of the documents referred to therein, constitute an accurate summary of the matters set forth therein in all material respects; and
(v) The statements set forth in the Pricing Disclosure Package and the Prospectus under the captions “United States Federal Tax Consequences to Holders of Notes” and “Employee Retirement Income Security Act,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and the U.S. Employee Retirement Income Security Act of 1974, as amended, and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters set forth therein in all material respects.
(c) The Company shall have furnished to the Underwriters an opinion, dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President and General Counsel of the Company, to that address substantially the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia, and is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, with power and authority to own its properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as matters set forth in the ProspectusExhibit A, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign corporation ▇▇▇▇▇ Day, Chicago, Illinois, counsel for the transaction of business and is in good standing under Company, that address substantially the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification or is subject to no material liability or disability by reason of the failure to be so qualified in any such jurisdiction;
(iv) SunTrust Bank has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Georgia; and except as matters set forth in the Prospectus, all of the issued shares of capital stock of SunTrust Bank are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;Exhibit B.
(v) To such counsel’s knowledge and other than as set forth in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which is reasonably likely to be adversely determined against the Company or any of its subsidiaries and, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate have a material adverse effect on the current or future general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken as a whole; and, to such counsel’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others;
(vic) The execution and delivery of this Agreement, the issuance and sale of the Notes, and the consummation of the transactions and performance of the obligations herein and therein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company or SunTrust Bank is a party or by which the Company or SunTrust Bank is bound or to which any of the property or assets of the Company or SunTrust Bank is subject, nor will such actions result in any violation of the provisions of the Restated Certificate of Incorporation, as amended, or By-laws of the Company or the organizational documents of SunTrust Bank or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company, SunTrust Bank or any of their properties;
(vii) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issuance and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, except such as have been obtained under the Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters;
(viii) The Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) The Registration Statement, the Prospectus and any further amendments and supplements thereto, as applicable, made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein and any Form T-1 Statements of Eligibility and Qualification filed as exhibits to the Registration Statement, as to which such counsel need express no opinion) comply as to form in all material respects with the requirements of the Act and the rules and regulations thereunder; and
(x) The documents incorporated by reference in the Prospectus or any further amendment or supplement thereto made by the Company prior to the Time of Delivery (other than the financial statements and related schedules and other financial information contained therein, as to which such counsel need express no opinion), when they became effective or were filed with the Commission, as the case may be, complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. In addition, although such counsel need not pass upon or assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus, such counsel shall confirm that he has no reason to believe that:
(1) each part of the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading;
(2) the Pricing Disclosure Package, as of the Applicable Time, contained an untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(3) the Prospectus, as of its date and as of the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or
(4) any amendment to the Registration Statement is required to be filed or that there are any contracts or other documents of a character required to be filed as an exhibit to the Registration Statement or required to be incorporated by reference into the Prospectus or required to be described in the Registration Statement or the Prospectus which are not filed or incorporated by reference or described as required; except that, with respect to clauses (1), (2), (3) and (4) above, such counsel need not express a belief with respect to the financial statements and related schedules and other financial information contained therein, and with respect to clause (i) above, such counsel need not express a belief with respect to any Form T-1.
(d) The Underwriters Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, New York, New York, counsel for the Underwriters, such opinion or opinions, opinions dated the Closing Date, Date with respect to such matters as the Underwriters Representatives may reasonably require. ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely , and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the President or any Vice President of the Company, dated the Closing Date, as to the matters set forth in paragraphs (a) and (h) of this Section 7 and to the further effect that the signers of such certificate have examined the Registration Statement, the Prospectus and this Agreement and that, to the best of his or her knowledge:
(i) the representations and warranties of the Company in this Agreement are true and correct on and as of the Closing Date with the same effect as if made on the Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to those matters that relate be performed or satisfied at or prior to the Indenture Trustee, upon the certificate or certificates of such entities and Closing Date; and
(ii) there has been no material adverse change in the condition of the Company and its subsidiaries taken as to matters governed a whole, financial or otherwise, whether or not arising in the ordinary course of business, from that set forth or contemplated by Georgia Lawthe Registration Statement, upon the opinion of King & Spalding LLP and the opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ delivered pursuant to Section 6(b) and 6(c)most recent Preliminary Prospectus, respectivelyor Prospectus.
(e) At the Applicable Time and at the Time of Delivery, Ernst & Young LLP The Representatives shall have furnished to you a letter or lettersreceived letters from Deloitte & Touche LLP, independent public accountants for the Company (dated the respective dates date of delivery thereofthis Agreement and Closing Date, respectively, and in form and substance satisfactory to you, the Representatives) advising that (i) they are an independent registered public accounting firm with respect to the effect set forth in Annex I (a form Company as required by the Act and published rules and regulations of the executed copy of Commission thereunder, (ii) in their opinion, the letter to be delivered prior to the execution of this Agreement is attached as Annex I(a) consolidated financial statements and a form of the executed letter to be delivered on the effective date of any post-effective amendment to supplemental schedules included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus and as covered by their opinion filed with the Commission under Section 13 of the Time Exchange Act comply as to form in all material respects with the applicable accounting requirements of Deliverythe Exchange Act and the published rules and regulations of the Commission thereunder, is attached as Annex I(b)).
(fiii) Neither that they have performed limited procedures, not constituting an audit, including a reading of the latest available interim financial statements of the Company, a reading of the minutes of meetings of the Board of Directors, committees thereof, and of the shareholder of the Company nor any of its Significant Subsidiaries shall have (i) sustained since the date of the latest most recent audited financial statements included or incorporated by reference in the Pricing Disclosure Package or Prospectus, inquiries of officials of the Company responsible for financial accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such limited review and procedures nothing came to their attention that caused them to believe that: (A) any material modifications should be made to any unaudited consolidated financial statements of the Company included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus for them to be in conformity with generally accepted accounting principles or any loss unaudited consolidated financial statements of the Company included or interference incorporated by reference in the Registration Statement, the Pricing Disclosure Package or the Prospectus do not comply as to form in all material respects with its business from fire, explosion, flood the applicable accounting requirements of the Exchange Act and the rules and regulations of the Commission applicable to Form 10-Q; and (B) with respect to the period subsequent to the date of the most recent financial statements included or other calamity, whether incorporated by reference in the Pricing Disclosure Package or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than the Prospectus and except as set forth in or contemplated by the Registration Statement, the Pricing Disclosure Package or the Prospectus, there were any adverse changes, at a specified date not more than three business days prior to the date of the letter, in the capital stock of the Company, increases in long-term debt of the Company on a consolidated basis as compared to the amounts shown on the most recent consolidated balance sheet included or incorporated by reference in the Pricing Disclosure Package or the Prospectus or, as of a specified date, there were any decreases in stockholders’ equity or net current assets of the Company on a consolidated basis as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated by reference in the Pricing Disclosure Package or the Prospectus, or for the period from the date of the most recent financial statements included or incorporated by reference in the Pricing Disclosure Package or the Prospectus to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in operating revenues, operating income or net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; and (iiiv) since they have carried out specified procedures performed for the purpose of comparing certain specified financial information and percentages (which is limited to financial information derived from general accounting records of the Company or, to the extent not so derived, from schedules prepared by Company officers responsible for such accounting records) included or incorporated by reference in the Registration Statement, the Pricing Disclosure Package and the Prospectus with indicated amounts in the financial statements or accounting records of the Company and (excluding any questions of legal interpretation) have found such information and percentages to be in agreement with the relevant accounting and financial information of the Company referred to in such letter in the description of the procedures performed by them.
(f) Subsequent to the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus Disclosure Package, there shall not have been any change or decrease specified in the capital stock letter or long-term debt letters referred to in paragraph (e) of the Company this Section 7 which makes it impractical or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Pricing Prospectus, the effect of which, in any such case described in clause (i) or (ii), is inadvisable in the judgment of the Representatives so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes on the terms and in the manner contemplated in by the Pricing Disclosure Package or the ProspectusPackage.
(g) The Company shall have complied with the provisions of the first sentence of Section 5(A)(d) hereof with respect Subsequent to the furnishing of prospectuses on the business day next succeeding the date execution and delivery of this Agreement.
(h) On or after the Applicable Time , (i) no downgrading shall have occurred in the rating accorded the Company’s Notes or any other debt securities or preferred stock of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as that such term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, Act (other than downgrades of debt securities issued by or on behalf of governmental entities for the benefit of the Company solely as a result of downgrades of ratings of any third parties insuring such debt securities) and (ii) no such organization shall have publicly announced that it has under surveillance, outlook, watch surveillance or review, or has changed its outlook with possible negative implicationsrespect to, its rating of the Notes or of any of the Company’s other debt securities or preferred stockstock of or guaranteed by the Company (other than an announcement with positive implications of a possible upgrading and other than with respect to debt securities issued by or on behalf of governmental entities for the benefit of the Company solely as a result of any such announcement with respect to any third parties insuring such debt securities).
(ih) On or after Since the Applicable Time most recent dates as of which information is given in the Pricing Disclosure Package and the Prospectus there shall not have occurred any has been no material adverse change in the condition of the following: (i) Company and its subsidiaries taken as a suspension whole, financial or material limitation in trading in securities generally on the New York Stock Exchange; (ii) a suspension otherwise, whether or material limitation in trading not arising in the Company’s securities on the New York Stock Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal ordinary course of business, otherwise than as set forth or New York or Georgia authorities or a material disruption in commercial banking or securities settlement or clearance services contemplated in the United States; (iv) Pricing Disclosure Package and the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the occurrence of any other calamity or crisis or any change in financialProspectus, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) which is in the judgment of the Representatives makes Underwriters so material and adverse as to make it impracticable or inadvisable to proceed with the public offering offering, sale or the delivery of the Notes on the terms and in the manner contemplated in the Pricing Disclosure Package or by this Agreement and the Prospectus.
(i) No Representative shall have advised the Company that the Registration Statement, Pricing Disclosure Package or Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact which in the opinion of counsel for the Underwriters is material or omits to state a fact which in the opinion of counsel for the Underwriters is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(j) The No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Notes; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Notes.
(k) All corporate proceedings and other legal matters incident to the authorization, form and validity of the Indenture and this Agreement and the transactions contemplated hereby shall be reasonably satisfactory to counsel to the Underwriters, and prior to the Closing Date, the Company shall have furnished or caused to be furnished to you at the Time of Delivery certificates of officers of the Company and trustees satisfactory to you as to the accuracy of the representations and warranties of the Company herein at and as of such time, as to the performance by the Company of all of its respective obligations hereunder to be performed at or prior to such time, as to the matters set forth in subsections (a) and (f) of this Section and as to Representatives such other matters customary information, certificates and documents as you they may reasonably request.
(l) The Company and Trustee shall have entered into the supplemental indenture relating to the Notes, and the Representatives shall have received counterparts, conformed as executed thereof, and the Notes shall have been duly executed and delivered by the Company and authenticated by the Trustee. If any of the conditions specified in this Section 7 shall not have been fulfilled when and as required by this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be satisfactory in form and substance to the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be cancelled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing, or by telephone, telegraph or facsimile transmission confirmed in writing.
Appears in 1 contract