Conditions of Obligations of Agents. The obligation of each Agent under this Agreement at any time to solicit offers to purchase the Notes is subject to the accuracy of the representations and warranties of the Company herein on the date hereof, on each Representation Date and on the date of each such solicitation, to the accuracy of the statements of the Company's officers made pursuant to the provisions hereof on each such date, to the performance by the Company of its obligations hereunder on or prior to each such date, and to each of the following additional conditions precedent: (a) No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or any Agent, shall be contemplated by the Commission. (b) Neither the Registration Statement nor the Prospectus, as amended or supplemented as of any Representation Date or date of such solicitation, as the case may be, shall contain any untrue statement of fact which, in the opinion of any Agent, is material or omits to state a fact which, in the opinion of such Agent, is material and is required to be stated therein or is necessary to make the statements therein not misleading. (c) There shall not have occurred (i) any suspension or limitation of trading in securities generally on the New York Stock Exchange other than a temporary suspension in trading to provide for an orderly market, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (ii) any banking moratorium declared by Federal or New York authorities; or (iii) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of such Agents, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with solicitations of purchases of, or sales of, Notes. (d) At the Closing Date, the Agents shall have received an opinion, dated the Closing Date, of a 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 Maryland, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which the conduct of its business or the ownership of its properties requires such qualification and the failure to do so would have a material and adverse impact on its financial condition; (ii) The Indenture has been duly authorized, executed and delivered by the Company, and is a valid instrument, legally binding on the Company, enforceable in accordance with its terms, except as limited by bankruptcy, insolvency, or other laws affecting the enforcement of creditors' rights and by general principles of equity; (iii) The issuance and sale of Notes have been duly authorized by all necessary corporate action of the Company. The Notes (assuming that they have been duly authenticated by the Trustee or a duly designated Authentication Agent under the Indenture, which fact counsel need not verify by an inspection of the Notes), when issued in accordance with the provisions of this Agreement and the Indenture, will be duly issued and constitute legal, valid and binding obligations of the Company enforceable in accordance with their terms and are entitled to the benefits provided by the Indenture, except as limited by bankruptcy, insolvency or other laws affecting the enforcement of creditors' rights and by general principles of equity; (iv) The Registration Statement has become effective under the Act and (a) 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; (b) the Registration Statement (as of its effective date) and the Prospectus (as of its date and as of the the Closing Date ) appeared to comply as to form in all material respects with the requirements of Form S-3 under the Act and the 33 Act Rules and Regulations and the Trust Indenture Act; (c) such counsel has no reason to believe that either the Registration Statement as of its effective date or the Prospectus as of the date of this Agreement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (d) the descriptions in the Registration Statement and Prospectus of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information required to be shown; and (e) such counsel does not know of any legal or governmental proceedings required to be described in the Prospectus which are not 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 or filed as required; it being understood that such counsel, in addressing the matters covered in this paragraph (iv), need express no opinion as to the financial statements or other financial and statistical information contained in the Registration Statement or the Prospectus or incorporated therein or attached as an exhibit thereto or as to the Statement of Eligibility and Qualification on Form T-1 of the Trustee under the Indenture; (v) The approval of the Public Service Commission of Maryland necessary for the valid issuance by the Company of Notes pursuant to this Agreement has been obtained and continues in full force and effect. The Company has received the approval of the Federal Energy Regulatory Commission ("FERC") for the issuance of Notes on or before December 31, 2000 with maturities of not more than 12 months after the date of issuance and the approval of FERC will be required for the issuance of any Notes having such maturities after December 31, 2000. Such counsel knows of no other approval of any other regulatory authority which is legally required for the valid offering, issuance, sale and delivery of the Notes by the Company under this Agreement (except that such opinion need not pass upon the requirements of state securities acts); (vi) To the best of such counsel's knowledge and belief, the consummation of the transactions contemplated in this Agreement and the compliance by the Company with all the terms of the Indenture did not and will not result in a breach of any of the terms or provisions of, or constitute a default under, the Company's Charter or By-Laws or any indenture, mortgage or deed of trust or other agreement or instrument to which the Company is a party; (vii) Each of this Agreement and the Interest Calculation Agency Agreement has been duly authorized, executed and delivered by the Company; (viii) The Indenture is duly qualified under the Trust Indenture Act; (ix) The issuance, sale and delivery of the Notes as contemplated by this Agreement are not subject to the approval of the Commission under the provisions of the Public Utility Holding Company Act of 1935, as amended (the "1935 Act"); and (x) The Notes and Indenture conform as to legal matters with the statements concerning them in the Registration Statement and Prospectus under the caption "DESCRIPTION OF NOTES" and on the cover page of the Prospectus. (e) At the Closing Date, the Agents shall have received a certificate, dated the Closing Date, of the Chairman of the Board, President or any Vice President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation and relying upon opinions of counsel to the extent legal matters are involved, shall state that (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, (ii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date,
Appears in 1 contract
Conditions of Obligations of Agents. The obligation of each Agent under this Agreement at any time to solicit offers to purchase the Notes is subject to the accuracy of the representations and warranties of the Company herein on the date hereof, on each Representation Date and on the date of each such solicitation, to the accuracy of the statements of the Company's officers made pursuant to the provisions hereof on each such date, to the performance by the Company of its obligations hereunder on or prior to each such date, and to each of the following additional conditions precedent:
(a) No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or any Agent, shall be contemplated by the Commission.
(b) Neither the Registration Statement nor the Prospectus, as amended or supplemented as of any Representation Date or date of such solicitation, as the case may be, shall contain any untrue statement of fact which, in the opinion of any Agent, is material or omits to state a fact which, in the opinion of such Agent, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) There shall not have occurred (i) any suspension or limitation of trading in securities generally on the New York Stock Exchange other than a temporary suspension in trading to provide for an orderly market, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (ii) any banking moratorium declared by Federal or New York authorities; or (iii) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of such Agents, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with solicitations of purchases of, or sales of, Notes.
(d) At the Closing Date, the Agents shall have received an opinion, dated the Closing Date, of a counsel for the Company, to the effect that:
(i) The Company, Baltimore Gas and Electric Company has (BGE) and Constellation Enterprises, Inc. (CEI) have been duly incorporated and is are validly existing as a corporation corporations in good standing under the laws of the State of Maryland, with power and authority (corporate and other) to own its their respective properties and conduct its business their respective businesses as described in the Prospectus; the Company owns all of the outstanding shares of common stock of BGE and CEI; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which the conduct of its business or the ownership of its properties requires such qualification and the failure to do so would have a material and adverse impact on its financial condition;
(ii) The Indenture has been duly authorized, executed and delivered by the Company, and is a valid instrument, legally binding on the Company, enforceable in accordance with its terms, except as limited by bankruptcy, insolvency, or other laws affecting the enforcement of creditors' rights and by general principles of equity;
(iii) The issuance and sale of Notes have been duly authorized by all necessary corporate action of the Company. The Notes (assuming that they have been duly authenticated by the Trustee or a duly designated Authentication Agent under the Indenture, which fact counsel need not verify by an inspection of the Notes), when issued in accordance with the provisions of this Agreement and the Indenture, will be duly issued and constitute legal, valid and binding obligations of the Company enforceable in accordance with their terms and are entitled to the benefits provided by the Indenture, except as limited by bankruptcy, insolvency or other laws affecting the enforcement of creditors' rights and by general principles of equity;
(iv) The Registration Statement has become effective under the Act and (a) 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; (b) the Registration Statement (as of its effective date) and the Prospectus (as of its the date and as of the the Closing Date this Agreement) appeared to comply as to form in all material respects with the requirements of Form S-3 under the Act and the 33 Act Rules and Regulations and the Trust Indenture Act; (c) such counsel has no reason to believe that either the Registration Statement as of its effective date or the Prospectus as of the date of this Agreement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (d) the descriptions in the Registration Statement and Prospectus of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information required to be shown; and (e) such counsel does not know of any legal or governmental proceedings required to be described in the Prospectus which are not 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 or filed as required; it being understood that such counsel, in addressing the matters covered in this paragraph (iv), need express no opinion as to the financial statements or other financial and statistical information contained in the Registration Statement or the Prospectus or incorporated therein or attached as an exhibit thereto or as to the Statement of Eligibility and Qualification on Form T-1 of the Trustee under the Indenture;
(v) The approval of the Public Service Commission of Maryland necessary for the valid issuance by the Company of Notes pursuant to this Agreement has been obtained and continues in full force and effect. The Company has received the approval of the Federal Energy Regulatory Commission ("FERC") for the issuance of Notes on or before December 31, 2000 with maturities of not more than 12 months after the date of issuance and the approval of FERC will be required for the issuance of any Notes having such maturities after December 31, 2000. Such counsel Counsel knows of no other approval of any other regulatory authority which is legally required for the valid offering, issuance, sale and delivery of the Notes by the Company under this Agreement (except that such opinion need not pass upon the requirements of state securities acts);
(vi) To the best of such counsel's knowledge and belief, the consummation of the transactions contemplated in this Agreement and the compliance by the Company with all the terms of the Indenture did not and will not result in a breach of any of the terms or provisions of, or constitute a default under, the Company's Charter or By-Laws or any indenture, mortgage or deed of trust or other agreement or instrument to which the Company is a party;
(vii) Each of this Agreement and the Interest Calculation Agency Agreement has been duly authorized, executed and delivered by the Company;
(viii) The Indenture is duly qualified under the Trust Indenture Act;
(ix) The issuance, sale and delivery of the Notes as contemplated by this Agreement are not subject to the approval of the Commission under the provisions of the Public Utility Holding Company Act of 1935, as amended (the "1935 Act"); and
(x) The Notes and Indenture conform as to legal matters with the statements concerning them in the Registration Statement and Prospectus under the caption "DESCRIPTION OF NOTES" and on the cover page of the Prospectus.
(e) At the Closing Date, the Agents shall have received a certificate, dated the Closing Date, of the Chairman of the Board, Vice Chairman, President or any Vice President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation and relying upon opinions of counsel to the extent legal matters are involved, shall state that (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, (ii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iii) no stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission, and (iv) subsequent to the date of the most recent financial statements set forth or incorporated by reference in the Prospectus, there has been no material adverse change in the financial position or in the financial results of operations of the Company, except as set forth or contemplated in the Prospectus or as described in such certificate.
(f) At the Closing Date, the Agents shall have received a letter, dated the Closing Date, of PricewaterhouseCoopers LLP, confirming that they are independent pubic accountants within the meaning of the Act and the 33 Act Rules and Regulations, and stating in effect that: - 9 -
(i) In their opinion, the consolidated financial statements and supporting schedules audited by them which are included in BGE's Form 10-K ("Form 10-K"), which is incorporated by reference in the Registration Statement comply in form in all material respects with the applicable accounting requirements of the Act and the 33 Act Rules and Regulations and the Exchange Act and the Exchange Act Rules and Regulations;
(ii) On the basis of procedures specified in such letter (but not an audit in accordance with generally accepted auditing standards), including reading the minutes of meetings of the shareholders, the Board of Directors and the Executive Committee of the Company since the end of the year covered by the Form 10-K as set forth in the minute books through a specified date not more than five days prior to the Closing Date, performing the procedures specified in Statement on Auditing Standards No. 71, Interim Financial Information, on the unaudited interim consolidated financial statements of the Company incorporated by reference in the Registration Statement, if any, and reading the latest available unaudited interim consolidated financial statements of the Company, and making inquiries of certain officials of the Company who have responsibility for financial and accounting matters as to whether the latest available financial statements not incorporated by reference in the Registration Statement are prepared on a basis substantially consistent with that of the audited consolidated financial statements incorporated in the Registration Statement, nothing has come to their attention that has caused them to believe that (1) any unaudited consolidated financial statements incorporated by reference in the Registration Statement do not comply in form in all material respects with the applicable requirements of the Act and the 33 Act Rules and Regulations and the Exchange Act and the Exchange Act Rules and Regulations or any material modifications should be made to those unaudited consolidated financial statements for them to be in conformity with generally accepted accounting principles; (2) at the date of the latest available balance sheet not incorporated by reference in the Registration Statement there was any change in the capital stock, change in long-term debt or decrease in consolidated net assets or common shareholders' equity as compared with the amounts shown in the latest balance sheet incorporated by reference in the Registration Statement or for the period from the closing date of the latest income statement incorporated by reference in the Registration Statement to the closing date of the latest available income statement read by them there were any decreases, as compared with the corresponding period of the previous year, in operating revenues, operating income, net income, the ratio of earnings to fixed charges (measured on the most recent twelve month period), or in earnings per share of common stock except in all instances of changes or decreases that the Registration Statement discloses have occurred or may occur, or which are described in such letter; or (3) at a specified date not more than five days prior to the Closing Date, there was any change in the capital stock or long-term debt of the Company or, at such date, there was any decrease in net assets of the Company as compared with amounts shown in the latest balance sheet incorporated by reference in the Registration Statement, [or for the period from the closing date of the latest income statement incorporated by reference in the Registration Statement to a specified date not more than five days prior to the Closing Date, there were any decreases as compared with the corresponding period of the previous year, in operating revenues, operating income, net income or in earnings applicable to common stock,] except in all cases for instances of changes or decreases that the Registration Statement discloses have occurred or may occur, or which are described in such letter; and
(iii) Certain specified procedures have been applied to certain financial or other statistical information (to the extent such information was obtained from the general accounting records of the Company) set forth or incorporated by reference in the Registration Statement and that such procedures have not revealed any disagreement between the financial and statistical information so set forth or incorporated and the underlying general accounting records of the Company, except as described in such letter.
(g) The Agents shall have received from Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Agents, an opinion dated the Closing Date, with respect to the matters referred to in paragraph 5(d) subheadings (ii), (iii), (iv)b, (v),(vii) (viii), and (x) and such other related matters as you may require and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass on such matters. In rendering such opinion, Xxxxxx Xxxxxx & Xxxxxxx may rely, as to the incorporation of the Company, and all other matters governed by the laws of the State of Maryland, and the applicability of the 1935 Act for the issuance, sale and delivery of the Notes upon the opinion of Counsel for the Company referred to above. In addition, such counsel shall state that such counsel has participated in conferences with officers, counsel and other representatives of the Company, representatives of the independent certified public accountants for the Company and representatives of the Agents at which the contents of the Registration Statement and the Prospectus and related matters were discussed; and, although such counsel is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus (except as to the matters referred to in their opinion rendered pursuant to subheading (ix) above), on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of officers, counsel and other representatives of the Company), no facts have come to the attention of such counsel which lead such counsel to believe that either the Registration Statement (as of its effective date) or the Prospectus (as of the date of this Agreement), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make such statements therein not misleading (it being understood that such counsel need make no comment with respect to the financial statements and other financial and statistical information included in the Registration Statement or Prospectus or incorporated therein or as to the Statement of Eligibility and Qualification on Form T-l of the Trustee under the Indenture). The Company will furnish the Agents with such conformed copies of such opinions, certificates, letters and documents as the Agents reasonably request.
Appears in 1 contract
Conditions of Obligations of Agents. The obligation of each Agent under this Agreement at any time to solicit offers to purchase the Notes is subject to the accuracy of the representations and warranties of the Company herein on the date hereof, on each Representation Date and on the date of each such solicitation, to the accuracy of the statements of the Company's officers made pursuant to the provisions hereof on each such date, to the performance by the Company of its obligations hereunder on or prior to each such date, and to each of the following additional conditions precedent:
(a) No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or any Agent, shall be contemplated by the Commission.
(b) Neither the Registration Statement nor the Prospectus, as amended or supplemented as of any Representation Date or date of such solicitation, as the case may be, shall contain any untrue statement of fact which, in the opinion of any Agent, is material or omits to state a fact which, in the opinion of such Agent, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) There shall not have occurred (i) any suspension or limitation of trading in securities generally on the New York Stock Exchange other than a temporary suspension in trading to provide for an orderly market, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the over-the-the- counter market; (ii) any banking moratorium declared by Federal or New York authorities; or (iii) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of such Agents, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with solicitations of purchases of, or sales of, Notes.
(d) At the Closing Date, the Agents shall have received an opinion, dated the Closing Date, of a counsel for the General Counsel or an Associate General Counsel of the Company, to the effect that:
(i) The Company has and Constellation Holdings, Inc. have been duly incorporated and is are validly existing as a corporation corporations in good standing under the laws of the State of Maryland, with power and authority (corporate and other) to own its their respective properties and conduct its business their respective businesses as described in the Prospectus; and the Company is duly qualified to do business as a foreign corporation in good standing in the Commonwealth of Pennsylvania and all other jurisdictions in which the conduct of its business or the ownership of its properties requires such qualification and the failure to do so would have a material and adverse impact on its financial condition;
(ii) The Indenture has been duly authorized, executed and delivered by the Company, and is a valid instrument, legally binding on the Company, enforceable in accordance with its terms, except as limited by bankruptcy, insolvency, or other laws affecting the enforcement of creditors' rights and by general principles of equity;
; (iii) The issuance and sale of Notes have been duly authorized by all necessary corporate action of the Company. The Notes (assuming that they have been duly authenticated by the Trustee or a duly designated Authentication Agent under the Indenture, which fact counsel need not verify by an inspection of the Notes), when issued in accordance with the provisions of this Agreement and the Indenture, will be duly issued and constitute legal, valid and binding obligations of the Company enforceable in accordance with their terms and are entitled to the benefits provided by the Indenture, except as limited by bankruptcy, insolvency or other laws affecting the enforcement of creditors' rights and by general principles of equity;
(iv) The Registration Statement has become effective under the Act and (a) 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; (b) the Registration Statement (as of its effective date) and the Prospectus (as of its the date and as of the the Closing Date this Agreement) appeared to comply as to form in all material respects with the requirements of Form S-3 under the Act and the 33 Act Rules and Regulations and the Trust Indenture Act; (c) such counsel has no reason to believe that either the Registration Statement as of its effective date or the Prospectus as of the date of this Agreement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (d) the descriptions in the Registration Statement and Prospectus of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information required to be shown; and (e) such counsel does not know of any legal or governmental proceedings required to be described in the Prospectus which are not 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 or filed as required; it being understood that such counsel, in addressing the matters covered in this paragraph (iv), need express no opinion as to the financial statements or other financial and statistical information contained in the Registration Statement or the Prospectus or incorporated therein or attached as an exhibit thereto or as to the Statement of Eligibility and Qualification on Form T-1 of the Trustee under the Indenture;
(v) The approval of the Public Service Commission of Maryland necessary for the valid issuance by the Company of Notes pursuant to this Agreement has been obtained and continues in full force and effect. The Company has received the approval of the Federal Energy Regulatory Commission ("FERC") for the issuance of Notes on or before December 31, 2000 with maturities of not more than 12 months after the date of issuance and the approval of FERC will be required for the issuance of any Notes having such maturities after December 31, 2000. Such counsel knows of no other approval of any other regulatory authority which is legally required for the valid offering, issuance, sale and delivery of the Notes by the Company under this Agreement (except that such opinion need not pass upon the requirements of state securities acts);the
(vi) To the best of such counsel's knowledge and belief, the consummation of the transactions contemplated in this Agreement and the compliance by the Company with all the terms of the Indenture did not and will not result in a breach of any of the terms or provisions of, or constitute a default under, the Company's Charter or By-By- Laws or any indenture, mortgage or deed of trust or other agreement or instrument to which the Company is a party;
(vii) Each of this Agreement and Agreement, the Interest Calculation Agency Agreement and the Letter of Representations has been duly authorized, executed and delivered by the Company;
(viii) The Indenture is duly qualified under the Trust Indenture Act;
(ix) The issuance, sale and delivery of the Notes as contemplated by this Agreement are not subject to the approval of the Commission under the provisions of the Public Utility Holding Company Act of 1935, as amended (the "1935 Act"); and
(x) The Notes and Indenture conform as to legal matters with the statements concerning them in the Registration Statement and Prospectus under the caption "DESCRIPTION OF NOTES" and on the cover page of the Prospectus.
(e) At the Closing Date, the Agents shall have received a certificate, dated the Closing Date, of the Chairman of the Board, President or any Vice President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation and relying upon opinions of counsel to the extent legal matters are involved, shall state that (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, (ii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date,, (iii) no stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission, and (iv) subsequent to the date of the most recent financial statements set forth or incorporated by reference in the Prospectus, there has been no material adverse change in the financial position or in the financial results of operations of the Company, except as set forth or contemplated in the Prospectus or as described in such certificate.
(f) At the Closing Date, the Agents shall have received a letter, dated the Closing Date, of Coopers & Lybrand, confirming that they are independent pubic accountantx xxxxxn the meaning of the Act and the 33 Act Rules and Regulations, and stating in effect that: (i) In their opinion, the consolidated financial statements and supporting schedules audited by them which are included in the Company's Form 10-K ("Form 10-K"), which is incorporated by reference in the Registration Statement comply in form in all material respects with the applicable accounting requirements of the Act and the 33 Act Rules and Regulations and the Exchange Act and the Exchange Act Rules and Regulations; (ii) On the basis of procedures specified in such letter (but not an audit in accordance with generally accepted auditing standards), including reading the minutes of meetings of the shareholders, the Board of Directors and the Executive Committee of the Company since the end of the year covered by the Form 10-K as set forth in the minute books through a specified date not more than five days prior to the Closing Date, performing the procedures specified in Statement on Auditing Standards No. 71, Interim Financial Information, on the unaudited interim consolidated financial statements of the Company incorporated by reference in the Registration Statement, if any, and reading the latest available unaudited interim consolidated financial statements of the Company, and making inquiries of certain officials of the Company who have responsibility for financial and accounting matters as to whether the latest available financial statements not incorporated by reference in the Registration Statement are prepared on a basis substantially consistent with that of the audited consolidated financial statements incorporated in the Registration Statement, nothing has come to their attention that has caused them to believe that (1) any unaudited consolidated financial statements incorporated by reference in the Registration Statement do not comply in form in all material respects with the applicable requirements of the Act and the 33 Act Rules and Regulations and the Exchange Act and the Exchange Act Rules and Regulations or any material modifications should be made to those unaudited consolidated financial statements for them to be in conformity with generally accepted accounting principles; (2) at the date of the latest available balance sheet not incorporated by reference in the Registration Statement there was any change in the capital stock, change in long-term debt or decrease in consolidated net assets or common shareholders' equity as compared with the amounts shown in the latest balance sheet incorporated by reference in the Registration Statement or for the period from the closing date of the latest income statement incorporated by reference in the Registration Statement to the closing date of the latest available income statement read by them there were any decreases, as compared with the corresponding period of the previous year, in operating revenues, operating income, net income, the ratio of earnings to fixed charges (measured on the most recent twelve month period), or in earnings per share of common stock except in all instances of changes or decreases that the Registration Statement discloses have occurred or may occur, or which are described in such letter; or (3) at a specified date not more than five days prior to the Closing Date, there was any change in the capital stock or long-term debt of the Company or, at such date, there was any decrease in net assets of the Company as compared with amounts shown in the latest balance sheet incorporated by reference in the Registration Statement, or for the period from the closing date of the latest income statement incorporated by reference in the Registration Statement to a specified date not more than five days prior to the Closing Date, there were any decreases as compared with the corresponding period of the previous year, in operating revenues, operating income, net income or in earnings applicable to common stock, except in all cases for instances of changes or decreases that the Registration Statement discloses have occurred or may occur, or which are described in such letter; and
Appears in 1 contract
Conditions of Obligations of Agents. The obligation of each Agent under this Agreement at any time to solicit offers to purchase the Notes is subject to the accuracy of the representations and warranties of the Company herein on the date hereof, on each Representation Date and on the date of each such solicitation, to the accuracy of the statements of the Company's officers made pursuant to the provisions hereof on each such date, to the performance by the Company of its obligations hereunder on or prior to each such date, and to each of the following additional conditions precedent:
(a) No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company or any Agent, shall be contemplated by the Commission.
(b) Neither the Registration Statement nor the Prospectus, as amended or supplemented as of any Representation Date or date of such solicitation, as the case may be, shall contain any untrue statement of fact which, in the opinion of any Agent, is material or omits to state a fact which, in the opinion of such Agent, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) There shall not have occurred (i) any suspension or limitation of trading in securities generally on the New York Stock Exchange other than a temporary suspension in trading to provide for an orderly market, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (ii) any banking moratorium declared by Federal or New York authorities; or (iii) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of such Agents, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with solicitations of purchases of, or sales of, Notes.
(d) At the Closing Date, the Agents shall have received an opinion, dated the Closing Date, of a counsel for the Company, to the effect that:
(i) The Company, Baltimore Gas and Electric Company has (BGE) and Constellation Enterprises, Inc. (CEI) have been duly incorporated and is are validly existing as a corporation corporations in good standing under the laws of the State of Maryland, with power and authority (corporate and other) to own its their respective properties and conduct its business their respective businesses as described in the Prospectus; the Company owns all of the outstanding shares of common stock of BGE and CEI; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which the conduct of its business or the ownership of its properties requires such qualification and the failure to do so would have a material and adverse impact on its financial condition;
(ii) The Indenture has been duly authorized, executed and delivered by the Company, and is a valid instrument, legally binding on the Company, enforceable in accordance with its terms, except as limited by bankruptcy, insolvency, or other laws affecting the enforcement of creditors' rights and by general principles of equity;
(iii) The issuance and sale of Notes have been duly authorized by all necessary corporate action of the Company. The Notes (assuming that they have been duly authenticated by the Trustee or a duly designated Authentication Agent under the Indenture, which fact counsel need not verify by an inspection of the Notes), when issued in accordance with the provisions of this Agreement and the Indenture, will be duly issued and constitute legal, valid and binding obligations of the Company enforceable in accordance with their terms and are entitled to the benefits provided by the Indenture, except as limited by bankruptcy, insolvency or other laws affecting the enforcement of creditors' rights and by general principles of equity;
(iv) The Registration Statement has become effective under the Act and (a) 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; (b) the Registration Statement (as of its effective date) and the Prospectus (as of its date and as of the the Closing Date Date) appeared to comply as to form in all material respects with the requirements of Form S-3 under the Act and the 33 Act Rules and Regulations and the Trust Indenture Act; (c) such counsel has no reason to believe that either the Registration Statement as of its effective date or the Prospectus as of the date of this Agreement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (d) the descriptions in the Registration Statement and Prospectus of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information required to be shown; and (e) such counsel does not know of any legal or governmental proceedings required to be described in the Prospectus which are not 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 or filed as required; it being understood that such counsel, in addressing the matters covered in this paragraph (iv), need express no opinion as to the financial statements or other financial and statistical information contained in the Registration Statement or the Prospectus or incorporated therein or attached as an exhibit thereto or as to the Statement of Eligibility and Qualification on Form T-1 of the Trustee under the Indenture;
(v) The approval of the Public Service Commission of Maryland necessary for the valid issuance by the Company of Notes pursuant to this Agreement has been obtained and continues in full force and effect. The Company has received the approval of the Federal Energy Regulatory Commission ("FERC") for the issuance of Notes on or before December 31, 2000 with maturities of not more than 12 months after the date of issuance and the approval of FERC will be required for the issuance of any Notes having such maturities after December 31, 2000. Such counsel Counsel knows of no other approval of any other regulatory authority which is legally required for the valid offering, issuance, sale and delivery of the Notes by the Company under this Agreement (except that such opinion need not pass upon the requirements of state securities acts);
(vi) To the best of such counsel's knowledge and belief, the consummation of the transactions contemplated in this Agreement and the compliance by the Company with all the terms of the Indenture did not and will not result in a breach of any of the terms or provisions of, or constitute a default under, the Company's Charter or By-Laws or any indenture, mortgage or deed of trust or other agreement or instrument to which the Company is a party;
(vii) Each of this Agreement and the Interest Calculation Agency Agreement has been duly authorized, executed and delivered by the Company;
(viii) The Indenture is duly qualified under the Trust Indenture Act;
(ix) The issuance, sale and delivery of the Notes as contemplated by this Agreement are not subject to the approval of the Commission under the provisions of the Public Utility Holding Company Act of 1935, as amended (the "1935 Act"); and
(x) The Notes and Indenture conform as to legal matters with the statements concerning them in the Registration Statement and Prospectus under the caption "DESCRIPTION OF NOTES" and on the cover page of the Prospectus.
(e) At the Closing Date, the Agents shall have received a certificate, dated the Closing Date, of the Chairman of the Board, President or any Vice President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation and relying upon opinions of counsel to the extent legal matters are involved, shall state that (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, (ii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, (iii) no stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued and no proceedings for that purpose have been instituted or are contemplated by the Commission, and (iv) subsequent to the date of the most recent financial statements set forth or incorporated by reference in the Prospectus, there has been no material adverse change in the financial position or in the financial results of operations of the Company, except as set forth or contemplated in the Prospectus.
(f) At the Closing Date, the Agents shall have received a letter, dated the Closing Date, of PricewaterhouseCoopers LLP, confirming that they are independent pubic accountants within the meaning of the Act and the 33 Act Rules and Regulations, and stating in effect that:
(i) In their opinion, the consolidated financial statements and supporting schedules audited by them which are included in the Company's Form 10-K ("Form 10-K"), which is incorporated by reference in the Registration Statement comply in form in all material respects with the applicable accounting requirements of the Act and the 33 Act Rules and Regulations and the Exchange Act and the Exchange Act Rules and Regulations;
(ii) On the basis of procedures specified in such letter (but not an audit in accordance with generally accepted auditing standards), including reading the minutes of meetings of the shareholders, the Board of Directors and the Executive Committee of the Company since the end of the year covered by the Form 10-K as set forth in the minute books through a specified date not more than five days prior to the Closing Date, performing the procedures specified in Statement on Auditing Standards No. 71, Interim Financial Information, on the unaudited interim consolidated financial statements of the Company incorporated by reference in the Registration Statement, if any, and reading the latest available unaudited interim consolidated financial statements of the Company, and making inquiries of certain officials of the Company who have responsibility for financial and accounting matters as to whether the latest available financial statements not incorporated by reference in the Registration Statement are prepared on a basis substantially consistent with that of the audited consolidated financial statements incorporated in the Registration Statement, nothing has come to their attention that has caused them to believe that (1) any unaudited consolidated financial statements incorporated by reference in the Registration Statement do not comply in form in all material respects with the applicable requirements of the Act and the 33 Act Rules and Regulations and the Exchange Act and the Exchange Act Rules and Regulations or any material modifications should be made to those unaudited consolidated financial statements for them to be in conformity with generally accepted accounting principles; (2) at the date of the latest available balance sheet not incorporated by reference in the Registration Statement there was any change in the capital stock, change in long-term debt or decrease in consolidated net assets or common shareholders' equity as compared with the amounts shown in the latest balance sheet incorporated by reference in the Registration Statement or for the period from the closing date of the latest income statement incorporated by reference in the Registration Statement to the closing date of the latest available income statement read by them there were any decreases, as compared with the corresponding period of the previous year, in operating revenues, operating income, net income, the ratio of earnings to fixed charges (measured on the most recent twelve month period), or in earnings per share of common stock except in all instances of changes or decreases that the Registration Statement discloses have occurred or may occur, or which are described in such letter; or (3) at a specified date not more than five days prior to the Closing Date, there was any change in the capital stock or long-term debt of the Company or, [at such date, there was any decrease in net assets of the Company as compared with amounts shown in the latest balance sheet incorporated by reference in the Registration Statement], [or for the period from the closing date of the latest income statement incorporated by reference in the Registration Statement to a specified date not more than five days prior to the Closing Date, there were any decreases as compared with the corresponding period of the previous year, in operating revenues, operating income, net income or in earnings applicable to common stock,] except in all cases for instances of changes or decreases that the Registration Statement discloses have occurred or may occur, or which are described in such letter; and
(iii) Certain specified procedures have been applied to certain financial or other statistical information (to the extent such information was obtained from the general accounting records of the Company) set forth or incorporated by reference in the Registration Statement and that such procedures have not revealed any disagreement between the financial and statistical information so set forth or incorporated and the underlying general accounting records of the Company, except as described in such letter.
(g) The Agents shall have received from Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Agents, an opinion dated the Closing Date, with respect to the matters referred to in paragraph 5(d) subheadings (ii), (iii), (iv)b, (v),(vii) (viii), and (x) and such other related matters as you may require and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass on such matters. In rendering such opinion, Xxxxxx Xxxxxx & Xxxxxxx may rely, as to the incorporation of the Company, and all other matters governed by the laws of the State of Maryland, and the applicability of the 1935 Act for the issuance, sale and delivery of the Notes upon the opinion of Counsel for the Company referred to above. In addition, such counsel shall state that such counsel has participated in conferences with officers, counsel and other representatives of the Company, representatives of the independent certified public accountants for the Company and representatives of the Agents at which the contents of the Registration Statement and the Prospectus and related matters were discussed; and, although such counsel is not passing upon and does not assume responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement and Prospectus (except as to the matters referred to in their opinion rendered pursuant to subheading (x) above), on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of officers, counsel and other representatives of the Company), no facts have come to the attention of such counsel which lead such counsel to believe that either the Registration Statement (as of its effective date) or the Prospectus (as of the date of this Agreement), contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make such statements therein not misleading (it being understood that such counsel need make no comment with respect to the financial statements and other financial and statistical information included in the Registration Statement or Prospectus or incorporated therein or as to the Statement of Eligibility and Qualification on Form T-l of the Trustee under the Indenture). The Company will furnish the Agents with such conformed copies of such opinions, certificates, letters and documents as the Agents reasonably request.
Appears in 1 contract
Conditions of Obligations of Agents. The obligation of each Agent under this Agreement at any time to solicit offers to purchase the Notes is subject to the accuracy of the representations and warranties of the Company Corporation herein on the date hereof, on each Representation Date and on the date of each such solicitation, to the accuracy of the statements of the CompanyCorporation's officers made pursuant to the provisions hereof on each such date, to the performance by the Company Corporation of its obligations hereunder on or prior to each such date, and to each of the following additional conditions precedent:
(a) No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Company Corporation or any Agent, shall be contemplated by the Commission.
(b) Neither the Registration Statement nor the Prospectus, as amended or supplemented as of any Representation Date or date of such solicitation, as the case may be, shall contain any untrue statement of fact which, in the opinion of any Agent, is material or omits to state a fact which, in the opinion of such Agent, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) There shall not have occurred (i) any suspension or limitation of trading in securities generally on the New York Stock Exchange other than a temporary suspension in trading to provide for an orderly market, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company Corporation on any exchange or in the over-the-the- counter market; (ii) any banking moratorium declared by Federal or New York authorities; or (iii) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of such Agents, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with solicitations of purchases of, or sales of, Notes.
(d) At the Closing Date, the Agents shall have received an opinion, dated the Closing Date, of a counsel for of the CompanyCorporation, (relying on Piper and Marbury as to Virginia law)to the effect that:
(i) The Company Corporation has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of MarylandMaryland and the Commonwealth of Virginia, with power and authority (corporate and other) to own its respective properties and conduct its business respective businesses as described in the Prospectus; and the Company Corporation is duly qualified to do business as a foreign corporation in good standing in the Commonwealth of Pennsylvania, the District of Columbia and all other jurisdictions in which the conduct of its business or the ownership of its properties requires such qualification and the failure to do so would have a material and adverse impact on its financial condition;
; (ii) The Indenture has been duly authorized, executed and delivered by the CompanyCorporation, and is a valid instrument, legally binding on the CompanyCorporation, enforceable in accordance with its terms, except as limited by bankruptcy, insolvency, or other laws affecting the enforcement of creditors' rights and by general principles of equity;
; (iii) The issuance and sale of Notes have been duly authorized by all necessary corporate action of the CompanyCorporation. The Notes (assuming that they have been duly authenticated by the Trustee or a duly designated Authentication Agent under the Indenture, which fact counsel need not verify by an inspection of the Notes), when issued in accordance with the provisions of this Agreement and the Indenture, will be duly issued and constitute legal, valid and binding obligations of the Company Corporation enforceable in accordance with their terms and are entitled to the benefits provided by the Indenture, except as limited by bankruptcy, insolvency or other laws affecting the enforcement of creditors' rights and by general principles of equity;
(iv) The Registration Statement has become effective under the Act and (a) 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; (b) the Registration Statement (as of its effective date) and the Prospectus (as of its date and as of the the Closing Date ) appeared to comply as to form in all material respects with the requirements of Form S-3 under the Act and the 33 Act Rules and Regulations and the Trust Indenture Act; (c) such counsel has no reason to believe that either the Registration Statement as of its effective date or the Prospectus as of the date of this Agreement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (d) the descriptions in the Registration Statement and Prospectus of statutes, legal and governmental proceedings and contracts and other documents are accurate and fairly present the information required to be shown; and (e) such counsel does not know of any legal or governmental proceedings required to be described in the Prospectus which are not 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 or filed as required; it being understood that such counsel, in addressing the matters covered in this paragraph (iv), need express no opinion as to the financial statements or other financial and statistical information contained in the Registration Statement or the Prospectus or incorporated therein or attached as an exhibit thereto or as to the Statement of Eligibility and Qualification on Form T-1 of the Trustee under the Indenture;
(v) The approval of the Public Service Commission of Maryland necessary for the valid issuance by the Company of Notes pursuant to this Agreement has been obtained and continues in full force and effect. The Company has received the approval of the Federal Energy Regulatory Commission ("FERC") for the issuance of Notes on or before December 31, 2000 with maturities of not more than 12 months after the date of issuance and the approval of FERC will be required for the issuance of any Notes having such maturities after December 31, 2000. Such counsel knows of no other approval of any other regulatory authority which is legally required for the valid offering, issuance, sale and delivery of the Notes by the Company under this Agreement (except that such opinion need not pass upon the requirements of state securities acts);
(vi) To the best of such counsel's knowledge and belief, the consummation of the transactions contemplated in this Agreement and the compliance by the Company with all the terms of the Indenture did not and will not result in a breach of any of the terms or provisions of, or constitute a default under, the Company's Charter or By-Laws or any indenture, mortgage or deed of trust or other agreement or instrument to which the Company is a party;
(vii) Each of this Agreement and the Interest Calculation Agency Agreement has been duly authorized, executed and delivered by the Company;
(viii) The Indenture is duly qualified under the Trust Indenture Act;
(ix) The issuance, sale and delivery of the Notes as contemplated by this Agreement are not subject to the approval of the Commission under the provisions of the Public Utility Holding Company Act of 1935, as amended (the "1935 Act"); and
(x) The Notes and Indenture conform as to legal matters with the statements concerning them in the Registration Statement and Prospectus under the caption "DESCRIPTION OF NOTES" and on the cover page of the Prospectus.
(e) At the Closing Date, the Agents shall have received a certificate, dated the Closing Date, of the Chairman of the Board, President or any Vice President and a principal financial or accounting officer of the Company in which such officers, to the best of their knowledge after reasonable investigation and relying upon opinions of counsel to the extent legal matters are involved, shall state that (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects, (ii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date,
Appears in 1 contract
