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Common use of Conditions of Obligations Clause in Contracts

Conditions of Obligations. The obligations of each Underwriter hereunder to purchase the Notes to be delivered at the Time of Delivery will be subject to the accuracy of the representations and warranties on the part of the Corporation and the Guarantor herein contained as of the date hereof and as of the Time of Delivery, to the accuracy of the statements of any duly authorized officer or official of the Corporation and the Guarantor made in any certificate furnished pursuant to the provisions of Section 6(b)(1), to the performance and observance by the Corporation and the Guarantor of all their respective covenants and other obligations hereunder and to the following further conditions: (1) No stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission; (2) no Underwriter shall have been advised by the Corporation that the Registration Statement, the Time of Sale Prospectus or the Prospectus, or any amendment or supplement thereto, at the time it was required to be delivered to a purchaser of the Notes, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading; and (3) subsequent to the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there shall not have been any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (b) At the Time of Delivery the Manager shall have received: (1) A certificate or certificates, dated as of such time, signed by the Chief Executive of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that 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 and that, subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus and, if applicable, the Time of Sale Prospectus with respect to the Notes, there has been no material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (2) An opinion, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion, with respect to the Corporation being duly constituted, the validity of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their opinion, Xxxxxxxx & Xxxxxxxx may rely on the opinions of the Mallesons Xxxxxxx Xxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by New South Wales and Australian law; (4) An opinion and negative assurance letter, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to such matters as the Manager receiving such opinion may reasonably request, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters; and (5) From the Auditor General of the State of New South Wales, or any successor independent auditor, a letter, dated as of such time, and delivered at such time, substantially in the form attached hereto as Annex A. (c) 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 or the Australian Stock Exchange; (ii) a general moratorium on commercial banking activities (A) in New York declared by either U.S. federal or New York State regulatory authorities or (B) in Australia declared by the Australian regulatory authorities or a material disruption in commercial banking or securities settlement or clearance systems in the United States or Australia; (iii) any outbreak or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any declaration of a national emergency or war by either of such countries, or any other calamity or crisis or materially adverse change in general economic, political or financial conditions having an effect on the U.S. or Australian financial markets; (iv) any downgrading in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse effect on the holders of the Notes, which in the case of any of the events described in clauses (i) through (iv) above, individually or in the aggregate, in the sole judgment of the Manager, makes it impracticable or inadvisable to proceed with the consummation of the purchase of Notes by the Underwriters for sale to others on the terms and in the manner contemplated in the Time of Sale Prospectus and the Prospectus, each as then amended or supplemented. (d) At the Time of Delivery, the Underwriters shall have been furnished with such documents and opinions as they may reasonably require in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Manager by notice to the Corporation at any time at or prior to the Time of Delivery and such termination shall be without liability of any party to any other party, except that the provisions of Section 5 hereof, the indemnity and contribution agreements set forth in Section 7 and 8 hereof, and the provisions of Section 10, 13 and 16 hereof shall remain in effect.

Appears in 2 contracts

Samples: Underwriting Agreement (Crown in Right of New South Wales), Underwriting Agreement (Crown in Right of New South Wales)

Conditions of Obligations. The obligations obligation of each Underwriter hereunder the Agents, as agents of the Company, under this Agreement to solicit offers to purchase the Notes Securities, as well as the obligation of each Agent to be delivered at the Time of Delivery will be purchase Securities pursuant to any Terms Agreement or otherwise, is subject to the accuracy of the representations and warranties on the part of the Corporation and the Guarantor herein Company contained as of the date hereof and as of the Time of Deliveryherein, to the accuracy of the statements of any duly authorized officer or official of the Corporation and the Guarantor Company’s officers made in any certificate furnished pursuant to the provisions of Section 6(b)(1)hereof to the extent then relevant, to the performance and observance by the Corporation and the Guarantor Company in all material respects of all their respective covenants and other its obligations hereunder hereunder, and to each of the following further additional terms and conditions: (1a) No stop order suspending the effectiveness of the Registration Statement Statement, or any part thereof thereof, nor any order directed to any document incorporated by reference in the Prospectus or the Disclosure Package shall have been issued under the Act or proceedings therefor and no stop order proceeding shall have been initiated or threatened by the Commission; (2) Commission and no Underwriter shall have been advised challenge by the Corporation that Commission shall be pending to the accuracy or adequacy of Registration Statement, the Time of Sale Prospectus or the Prospectus, Disclosure Package or any amendment or supplement thereto, at document incorporated by reference in the time it was required to be delivered to a purchaser foregoing documents; any request of the Notes, contained an untrue statement Commission for inclusion 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 existing at such time, not misleading; and (3) subsequent to the respective dates as of which additional information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there shall not have been any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (b) At the Time of Delivery the Manager shall have received: (1) A certificate or certificates, dated as of such time, signed by the Chief Executive of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that 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 and that, subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus and, if applicableor the Disclosure Package or otherwise shall have been withdrawn or complied with; and after the date of any Terms Agreement (and prior to the Settlement Date for the Securities referred to therein) the Company shall not have filed with the Commission any amendment or supplement to the Registration Statement, the Time of Sale Prospectus with respect to the Notes, there has been no material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus;Disclosure Package (or any document incorporated by reference in the foregoing documents) without the consent of the Agent or Agents party thereto. (2b) An opinionNo order suspending the sale of the Securities in any jurisdiction designated by an Agent pursuant to Section 3(1) hereof shall have been issued, and no proceeding for that purpose shall have been initiated or threatened. (c) The Agents shall not have discovered and disclosed to the Company that the Registration Statement, the Prospectus or the Disclosure Package, each as amended or supplemented, contains an untrue statement of a fact which, in the opinion of counsel for the Agents, is material or omits to state a 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. (d) On the Closing Date, the Agents shall have received from Xxxxxx Xxxxxxx Xxxxx LLP, counsel for the Agents, such opinion and letter, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinionClosing Date, with respect to the Corporation being duly constitutedissuance and sale of the Securities, the validity of the Notes and the Guarantee of the Notes by the GuarantorIndenture, the Registration Statement, the ProspectusProspectus and the Disclosure Package, the Time of Sale Prospectus (if applicable) each as amended or supplemented, and other related matters as they the Agents may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may reasonably require, and the Corporation and the Guarantor Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their . (e) On the Closing Date, the Agents shall have received the opinion, Xxxxxxxx & Xxxxxxxx may rely on addressed to the opinions Agents and dated the Closing Date, of Xxxxxx Xxxxxx, Esq., General Counsel of the Mallesons Xxxxxxx Xxxxxx (or other counsel Company, in form and scope satisfactory to the Manager receiving such opinions) as Agents and their counsel, substantially to all matters governed by New South Wales and Australian law;the effect set forth in Exhibit D hereto. (4f) An opinion and negative assurance letterOn the Closing Date, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to Agents shall have received the Manager receiving such opinion and letter, with respect addressed to such matters as the Manager receiving such Agents and dated the Closing Date, of Xxxxx Xxxxxxx US LLP, counsel to the Company, which opinion may reasonably requestand letter shall be satisfactory in form and scope to counsel for the Agents, substantially to the effect set forth in Exhibit E-1 and the Corporation and the Guarantor Exhibit E-2 hereto. (g) The Company shall have furnished to the Agents on the Closing Date a certificate, dated the Closing Date, of its President, Chief Executive Officer, Vice President or Chief Financial Officer stating that: (i) the representations, warranties and agreements of the Company in Section 1 hereof are true and correct as of such counsel Closing Date; the Company has complied in all material respects with all its agreements contained herein; and the conditions set forth in Sections 5(a) and 5(b) hereof have been fulfilled, (ii) in his opinion, as of the effective date of the Registration Statement, the Registration Statement did not contain an untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, if the certificate is being delivered pursuant to a Terms Agreement (as hereafter defined), as of the Applicable Time, the Disclosure Package did not contain an untrue statement of a material fact and did not 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, and the Prospectus as of its date and as of the Closing Date did not contain an untrue statement of a material fact and did not 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, (iii) since the respective dates as of which information is given in the Registration Statement, the Prospectus and the Disclosure Package, as amended or supplemented, there has not been any material adverse change in the condition, financial or other, or earnings of the Company, whether or not arising from transactions in the ordinary course of business, (iv) since the effective date of the Registration Statement, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus but which has not been so set forth or incorporated by reference therein, (v) the Company has no material contingent obligations which are required to be disclosed in the Registration Statement, the Prospectus or the Disclosure Package and are not disclosed therein, (vi) no stop order suspending the effectiveness of the Registration Statement is in effect on such documents as they reasonably request Closing Date and no proceedings for the purpose issuance of enabling them such an order have been taken or to pass upon the knowledge of the Company are contemplated by the Commission on or prior to such matters; andClosing Date, (vii) there are no material legal proceedings to which the Company is a party or of which property of the Company is the subject which are required to be disclosed in the Registration Statement, the Prospectus or the Disclosure Package and are not disclosed therein and (viii) there are no material contracts to which the Company is a party which are required to be disclosed in the Registration Statement, the Prospectus or the Disclosure Package and are not disclosed therein. (5h) From KPMG LLP (or successor independent public accountants with respect to the Auditor General Company within the meaning of the State of New South WalesSecurities Act and the rules and regulations thereunder) shall have furnished to the Agents, at or any successor independent auditorprior to the Closing Date, a letter, addressed to the Agents and dated as the Closing Date, confirming that they are independent public accountants with respect to the Company within the meaning of such time, the Securities Act and delivered at such timeare in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, substantially to the effect set forth in the form attached hereto as Annex A.Exhibit F hereto. (ci) There shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities of the Company or generally on the The New York Stock Exchange or the Australian Stock Exchange; , (ii) a general banking moratorium on commercial banking activities (A) in New York declared by either U.S. federal Federal or New York State regulatory authorities state authorities, (iii) any outbreak of hostilities involving the United States, any escalation of hostilities involving the United States, any attack on the United States or any act of terrorism in which the United States is involved, (Biv) in Australia declared by the Australian regulatory authorities or a material any major disruption in commercial banking or the settlement of securities settlement or clearance systems in the United States or Australia; (iii) any outbreak other relevant jurisdiction or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any a declaration of a national emergency or war by either of the United States or (v) such countries, or any other calamity or crisis or materially a material adverse change in general economic, political or financial conditions having an domestically or internationally (or the effect of international conditions on the U.S. or Australian financial markets; (iv) any downgrading markets in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse the effect on the holders of the Notes, which conditions in the United States on international financial markets shall be such) the effect of which is, in any case of any of the events described in clauses (i) through clause (iv) above, individually or in the aggregate(v), in the sole judgment of the ManagerPurchasing Agent, makes to make it impracticable or inadvisable to proceed with the consummation solicitation of offers to purchase or the purchase or delivery of the purchase of Notes by the Underwriters for sale to others Securities on the terms and in the manner contemplated in the Time Prospectus; provided, however, that in the event that any Agent agrees to purchase Securities as a principal (whether pursuant to a Terms Agreement or otherwise) there shall not have occurred any of Sale Prospectus and the Prospectus, each as then amended or supplementedforegoing subsequent to the date of such agreement. (dj) At Prior to the Time of DeliveryClosing Date, the Underwriters Company shall have been furnished to the Agents and to Xxxxxx Xxxxxxx Xxxxx LLP, counsel to the Agents, such further certificates and documents as the Agents or counsel to the Agents may have reasonably requested prior to the Closing Date. (k) Subsequent to the execution of any Terms Agreement and prior to the Settlement Date: (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization”, as that term is defined by the Commission in Section 3(a)(62) under the Exchange Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, with such documents and opinions as they may reasonably require in order to evidence the accuracy and completeness possible negative implications, its rating of any of the representations and warranties, or the fulfillment of Company’s debt securities. If any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition conditions specified in this Section 6 5 shall not have been fulfilled when and as required to be fulfilled, this Agreement (or, at the option of any Agent, acting as principal, any applicable Terms Agreement) and all obligations of any Agent hereunder (or under any applicable Terms Agreement) may be terminated canceled by the Manager by notice any such Agent, insofar as this Agreement relates to such Agent at any time. Notice of such cancellation shall be given to the Corporation at any time at Company in writing, or prior to the Time of Delivery and such termination shall be without liability of any party to any other party, except that the by facsimile or telephone confirmed in writing. The provisions of Section 5 hereofSections 3(c), the indemnity and contribution agreements set forth in Section 7 and 8 hereof3(h), and the provisions of Section 104, 13 7, 8, 9, 13, 14 and 16 hereof shall remain survive any such cancellation. All opinions, letters, evidence and certificates mentioned above or elsewhere in effectthis Agreement shall be deemed to be in compliance with the provisions hereof only if they are on the date of delivery in the form and scope reasonably satisfactory to counsel for the Agents.

Appears in 2 contracts

Samples: Agency Agreement (National Rural Utilities Cooperative Finance Corp /Dc/), Agency Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)

Conditions of Obligations. The obligations obligation of each Underwriter hereunder Agent, as agent of NIB, under this Agreement at any time to solicit offers to purchase the Notes to be delivered at the Time of Delivery will be is subject to the accuracy accuracy, on the date hereof, on each Representation Date and on the date of each such solicitation, of the representations and warranties on of NIB herein relating to the part of Registered Notes or the Corporation and the Guarantor herein contained 144A Notes, as of the date hereof and as of the Time of Deliveryapplicable, to the accuracy accuracy, on each such date, of the statements of any duly authorized officer or official of the Corporation and the Guarantor NIB’s officers made in any certificate furnished pursuant to the provisions of Section 6(b)(1)hereof that relate to such Notes, to the performance and observance performance, on or prior to such date, by the Corporation and the Guarantor NIB of all their respective covenants and other its obligations hereunder that relate to such Notes, and to each of the following further conditionsadditional conditions precedent: (1a) No stop order suspending In the effectiveness case of the Registration Statement or any part thereof shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission; all Notes: (2i) no Underwriter shall have been advised by the Corporation that Neither the Registration Statement, the Time of Sale Prospectus or the nor any 144A Prospectus, as applicable, each as amended or supplemented as of any amendment Representation Date or supplement theretodate of such solicitation, at as the time it was case may be, shall contain an untrue statement of fact that, in the opinion of the Agents, is material or omits to state a fact that, in the opinion of the Agents, is material and is required to be stated therein or is necessary to make the statements therein not misleading. (ii) As of each of the Closing Date, and the most recent date on which NIB has filed a Form 18-K or Form 18-K/A with the Commission containing annual financial data (each such date, as “Information Date”), the Agents shall have received an opinion, dated such date, of the General Counsel or Senior Counsel of NIB to the effect that: (A) NIB is duly established and existing and has status of an international legal person with full legal capacity in each of the Member Countries. In particular, NIB has the capacity to enter into agreements, to acquire and dispose of immovable and movable property, and to be a party to legal proceedings before courts of law and other authorities. The Establishment Agreement, the 1998 Agreement, and the 2004 Agreement, including the Statutes of NIB, as amended (the “Statutes”) attached thereto, have been duly executed and ratified by all the Member Countries and the 2004 Agreement constitutes a valid and legally binding obligation of the Member Countries (defined terms used but not defined in this Section 5(a)(ii)(A) shall have the meanings ascribed to such terms in Section 16(d) hereof); (B) each of the Fiscal Agency Agreement and this Agreement has been duly authorized, executed and delivered by NIB and constitutes a valid and legally binding obligation of NIB in accordance with its terms; (C) the Notes have been duly authorized by NIB in accordance with the Statutes; when the terms of the Notes have been established in accordance with the Fiscal Agency Agreement and the Notes have been executed, authenticated, issued and delivered in accordance with the Fiscal Agency Agreement and this Agreement and paid for by the purchasers thereof, the Notes will constitute valid, legally binding and direct and unconditional general obligations of NIB in accordance with their terms, and the Notes will be entitled to a purchaser the benefit of the Fiscal Agency Agreement; and upon issuance of the Notes, contained an the obligations of NIB evidenced thereby will constitute direct, unconditional and unsecured obligations of NIB ranking pari passu without any preference among themselves and equally with all other unsecured indebtedness (other than subordinated indebtedness) of NIB from time to time outstanding; (D) the Registration Statement and its filing with the Commission have been duly authorized by and on behalf of NIB, and the Registration Statement has been executed by and on behalf of NIB; and the information in the Registration Statement stated on the authority of the President of NIB has been stated by him in his official capacity as President thereunto duly authorized by NIB; (E) all matters relating to the 2004 Agreement referred to in paragraph (i) above, the Statutes and the respective laws of each of the Member Countries set forth in the Registration Statement as of the effective date thereof, and as of the date of the Prospectus and as of the date hereof, are correctly set forth therein; and such General Counsel or Senior Counsel has no reason to believe that the Registration Statement or the Prospectus contains any untrue statement of a material fact or omitted omits to state a material fact required to be stated therein or necessary in order to make the statements thereintherein not misleading, except that such General Counsel or Senior Counsel need express no opinion as to the financial statements and schedules and other financial data included in the light Registration Statement; (F) NIB has full power and authority to authorize, issue and sell the Notes as contemplated by this Agreement, and to perform and comply with the terms and provisions of the circumstances existing at Notes, the Fiscal Agency Agreement and of this Agreement; (G) all authorizations, approvals and consents required under the 2004 Agreement, the Statutes or otherwise that are necessary for the execution and delivery of the Fiscal Agency Agreement, this Agreement, the execution, issuance, sale and delivery of the Notes thereunder and the performance by NIB of the covenants contained in the Notes have been obtained and are in force; (H) under Article 5, 6 and 7 of the 2004 Agreement it should be noted that (i) actions may be brought against NIB only in a court of competent jurisdiction in the territory of a country in which NIB has established an office, has appointed an agent for the purpose of accepting service of process, or when NIB has otherwise expressly accepted jurisdiction; actions may, however, be brought by a Member Country or by persons acting for or deriving claims from a Member Country only if NIB has given its express consent thereto; (ii) the property and assets of NIB, wherever located and by whomsoever held, shall be immune from execution of judgment or decree by judicial or administrative authority before such timejudgment or decree is final; (iii) the property and assets of NIB, not misleadingwherever located and by whomsoever held, shall be immune from search, requisition, confiscation and expropriation by executive or legislative action; (iv) NIB, its property and assets shall be immune from procedural measure of constraint such as seizure; and (3v) subsequent the premises and archives of NIB are inviolable as well as all documents belonging to it or held by it; (I) NIB would not be entitled to plead, or cause to be pleaded on its behalf, sovereign immunity from the jurisdiction of any court in respect of any action arising out of or relating to its obligations under the Fiscal Agency Agreement, this Agreement or the Notes and brought consistent with Articles 5, 6 and 7 of the 2004 Agreement, and such court would be entitled to assume jurisdiction in respect of such action; and (J) there are no stamp or similar taxes under the respective dates laws of any of the Member Countries payable in connection with the issuance of the Notes. Insofar as the opinion required by this paragraph (i)(b) involves the laws of the United States or any jurisdiction thereof, it may be given in reliance upon the opinion required by paragraph (i)(d) of this Section 5 and, insofar as such opinion involves the laws of any other jurisdiction, it may be given in reliance upon the opinion of counsel satisfactory to such General Counsel or Senior Counsel. (iii) On each of the Closing Date and the then most recent Information Date, the Agents shall have received a letter, dated such date, of a duly appointed independent auditor of NIB, confirming that they are independent public accountants with respect to NIB and containing statements and information of the type ordinarily included in accountants’ comfort letters in accordance with Statement of Auditing Standards (SAS) 72 or other auditing standards that may be in effect at that time. The letter shall state in effect that on the basis of procedures (but not an examination in accordance with generally accepted auditing standards in the Member Countries) consisting of reading all available minutes of the meetings of the Board of Directors of NIB through a specified cut off date and making inquiries of certain officers of NIB who have responsibility for financial and accounting matters regarding the specific items for which information representations are requested below: (A) Nothing came to their attention as a result of the foregoing procedures that caused them to believe that at the specified cut off date: (1) if the cut off date is given not more than 135 days after the date of the most recent financial statements included in the Registration Statement, there was any change in the Time capital or borrowings, if available, of Sale Prospectus and NIB as compared with amounts shown on the latest balance sheet included in the Prospectus, there shall not except for changes which the Prospectus discloses have been any material adverse change occurred or may occur or in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as respective aggregate amounts set forth in or contemplated by the Time of Sale Prospectus or the Prospectus;such letter; or (b2) At if the Time of Delivery cut off date is not more than 135 days after the Manager shall have received: (1) A certificate or certificates, dated as of such time, signed by the Chief Executive date of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that 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 and that, subsequent to the respective dates as of which information is given most recent financial statements included in the Registration Statement, there was any increase in the “credit loss/recovery” account, except in all instances for changes or losses which the Prospectus and, if applicable, the Time of Sale Prospectus with respect to the Notes, there has been no material adverse change in the financial position, results of operation, business affairs discloses have occurred or business prospects of the Corporation may occur or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as which are set forth in or contemplated by the Time of Sale Prospectus or the Prospectussuch letter; (2B) An opinionIf the cut off date is not more than 135 days after the date of the most recent financial statements included in the Registration Statement, nothing has come to their attention as a result of the foregoing procedures that caused them to believe that at the cut off date there was any decrease in the total assets of NIB as compared with the amounts shown in the latest balance sheet included in the Prospectus; and (C) They compared the monetary amounts (or percentages derived from such monetary amounts) and other financial information contained in the Prospectus under the captions “Introduction – Nordic Investment Bank”, “Capitalization and Reserves”, “Funded Debt”, “Short-Term Financing and Liquidity Management”, “Operations of NIB”, “Schedule of Annual Amortization of Funded Debt Outstanding” and “Summary Schedule of Funded Debt” and in the Schedule of Funded Debt attached as Exhibit I to NIB’s Form 18-K (in each case to the extent that such monetary amounts, percentages and other financial information are derived from the general accounting records of NIB subject to the internal controls of NIB’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and has found such monetary amounts, percentages and other financial information to be in agreement with such results. References to the Prospectus in this paragraph (c) include any supplement thereto at the date of the letter. (iv) On each of the Closing Date and the then most recent Information Date, the Agents shall have received from Cxxxxx Xxxxxxxx Xxxxx & Hxxxxxxx LLP, counsel for the Agents, such opinion or opinions, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opiniondate, with respect to the Corporation being duly constituted, the validity of the Notes and the Guarantee of the Notes by the GuarantorNotes, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the 144A Prospectus, the Time of Sale Prospectus (if as applicable) , and other related matters as they may require, and the Corporation and the Guarantor NIB shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their . In rendering such opinion, Cxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx Hxxxxxxx LLP may rely on the opinions of the Mallesons Xxxxxxx Xxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by New South Wales and Australian law;the respective laws of each of the Member countries upon the opinion of the General Counsel or Senior Counsel of NIB referred to above. (4b) An In the case of Registered Notes only: (i) If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement and any Issuer Free Writing Prospectus, shall have been filed in the manner and within the time period required by Rule 424(b) and NIB will have filed a Final Pricing Supplement or final term sheet containing solely a description of the Notes, in a form approved by the Agent (the “Final Term Sheet”); and 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 NIB or such Agent, shall be contemplated by the Commission. NIB will have filed the Final Term Sheet and any other material required to be filed by NIB with the Commission pursuant to Rule 433 within the applicable time required by such Rule and will have filed with the Commission the relevant Prospectus Supplement required to be filed pursuant to Rule 424(b), in the manner and within the time period required by Rule 424(b). (ii) On the Closing Date, on each Information Date and on the date of delivery of each Tranche of Registered Notes, the Agents shall have received a certificate, dated such date, of the President or the principal financial or accounting officer of NIB in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that, as applicable to the Registered Notes, (i) the representations and warranties of NIB in this Agreement are true and correct in all material respects, (ii) NIB 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, to such officer’s knowledge, are contemplated by the Commission, and (iv) subsequent to the date of the most recent financial statements in the Prospectus, there has been no material adverse change in the financial position or results of operations of NIB, except as set forth in or contemplated by the Prospectus or as described in such certificate. (c) In the case of each Tranche of 144A Notes only: (i) The 144A Prospectus relating to such Tranche shall not contain an untrue statement of fact that, in the opinion of the Agents, is material or omits to state a fact that, in the opinion of the Agents, is material and negative assurance letteris required to be stated therein or is necessary to make the statements therein not misleading. (ii) On the date of delivery of such Tranche of 144A Notes, the Agents shall have received a certificate, dated the Closing Date, of the President or the principal financial or accounting officer of NIB in which such officer, to the best of his or her knowledge after reasonable investigation, shall state that, as applicable to such 144A Notes, as of the time of acceptance and as of such date of delivery (i) the representations and warranties of NIB in this Agreement are true and correct in all material respects, (ii) NIB 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, and (iii) subsequent to the date of the most recent financial statements in such 144A Prospectus, there has been no material adverse change in the financial position or results of operations of NIB, except as set forth in or contemplated by such 144A Prospectus or as described in such certificate. (iii) On the date of delivery of such Tranche of 144A Notes, the Agents shall have received an opinion, dated as of such timedate of delivery, of Skaddenfrom Cxxxxx Xxxxxxxx Xxxxx & Hxxxxxxx LLP, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to for the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion and letterAgents, with respect to such matters as the Manager receiving such opinion may reasonably request, and exemption from registration under the Corporation and the Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters; and (5) From the Auditor General of the State of New South Wales, or any successor independent auditor, a letter, dated as Securities Act of such time, and delivered at such time, substantially in the form attached hereto as Annex A. (c) There shall not have occurred any Tranche of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or the Australian Stock Exchange; (ii) a general moratorium on commercial banking activities (A) in New York declared by either U.S. federal or New York State regulatory authorities or (B) in Australia declared by the Australian regulatory authorities or a material disruption in commercial banking or securities settlement or clearance systems in the United States or Australia; (iii) any outbreak or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any declaration of a national emergency or war by either of such countries, or any other calamity or crisis or materially adverse change in general economic, political or financial conditions having an effect on the U.S. or Australian financial markets; (iv) any downgrading in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse effect on the holders of the 144A Notes, which in the case of any of the events described in clauses (i) through (iv) above, individually or in the aggregate, in the sole judgment of the Manager, makes it impracticable or inadvisable to proceed with the consummation of the purchase of Notes by the Underwriters for sale to others on the terms and in the manner contemplated in the Time of Sale Prospectus and the Prospectus, each as then amended or supplemented. (d) At NIB will furnish the Time Agents with such conformed copies of Deliverysuch opinions, certificates, letters and documents as they reasonably request. (e) In the case of any Tranche of Notes with an aggregate principal amount equal to or greater than U.S.$500,000,000, or its equivalent in foreign currencies or composite currencies, the Underwriters shall have been furnished with Agents and NIB may agree that NIB will deliver, on the date of delivery of such Tranche of Notes, such additional documents and opinions as they may reasonably require in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition are specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Manager by notice to the Corporation at any time at or prior to the Time of Delivery and such termination shall be without liability of any party to any other party, except that the provisions of Section 5 hereof, the indemnity and contribution agreements set forth in Section 7 and 8 hereof, and the provisions of Section 10, 13 and 16 hereof shall remain in effectrelevant Terms Agreement.

Appears in 2 contracts

Samples: Selling Agency Agreement (Nordic Investment Bank), Selling Agency Agreement (Nordic Investment Bank)

Conditions of Obligations. The obligations obligation of each Underwriter hereunder the Agents, as agents of the Company, under this Agreement to solicit offers to purchase the Notes Securities, as well as the obligation of each Agent to be delivered at the Time of Delivery will be purchase Securities pursuant to any Terms Agreement or otherwise, is subject to the accuracy of the representations and warranties on the part of the Corporation and the Guarantor herein Company contained as of the date hereof and as of the Time of Deliveryherein, to the accuracy of the statements of any duly authorized officer or official of the Corporation and the Guarantor Company’s officers made in any certificate furnished pursuant to the provisions of Section 6(b)(1)hereof to the extent then relevant, to the performance and observance by the Corporation and the Guarantor Company in all material respects of all their respective covenants and other its obligations hereunder hereunder, and to each of the following further additional terms and conditions: (1a) No stop order suspending the effectiveness of the Registration Statement Statement, or any part thereof thereof, nor any order directed to any document incorporated by reference in the Prospectus or the Disclosure Package shall have been issued under the Act or proceedings therefor and no stop order proceeding shall have been initiated or threatened by the Commission; (2) Commission and no Underwriter shall have been advised challenge by the Corporation that Commission shall be pending to the accuracy or adequacy of Registration Statement, the Time of Sale Prospectus or the Prospectus, Disclosure Package or any amendment or supplement thereto, at document incorporated by reference in the time it was required to be delivered to a purchaser foregoing documents; any request of the Notes, contained an untrue statement Commission for inclusion 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 existing at such time, not misleading; and (3) subsequent to the respective dates as of which additional information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there shall not have been any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (b) At the Time of Delivery the Manager shall have received: (1) A certificate or certificates, dated as of such time, signed by the Chief Executive of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that 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 and that, subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus and, if applicableor the Disclosure Package or otherwise shall have been withdrawn or complied with; and after the date of any Terms Agreement (and prior to the Settlement Date for the Securities referred to therein) the Company shall not have filed with the Commission any amendment or supplement to the Registration Statement, the Time of Sale Prospectus with respect to the Notes, there has been no material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus;Disclosure Package (or any document incorporated by reference in the foregoing documents) without the consent of the Agent or Agents party thereto. (2b) An opinionNo order suspending the sale of the Securities in any jurisdiction designated by an Agent pursuant to Section 3(1) hereof shall have been issued, and no proceeding for that purpose shall have been initiated or threatened. (c) The Agents shall not have discovered and disclosed to the Company that the Registration Statement, the Prospectus or the Disclosure Package, each as amended or supplemented, contains an untrue statement of a fact which, in the opinion of counsel for the Agents, is material or omits to state a 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. (d) On the Closing Date, the Agents shall have received from Hunton & Wxxxxxxx LLP, counsel for the Agents, such opinion and letter, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinionClosing Date, with respect to the Corporation being duly constitutedissuance and sale of the Securities, the validity of the Notes and the Guarantee of the Notes by the GuarantorIndenture, the Registration Statement, the ProspectusProspectus and the Disclosure Package, the Time of Sale Prospectus (if applicable) each as amended or supplemented, and other related matters as they the Agents may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may reasonably require, and the Corporation and the Guarantor Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their . (e) On the Closing Date, the Agents shall have received the opinion, Xxxxxxxx & Xxxxxxxx may rely on addressed to the opinions Agents and dated the Closing Date, of Rxxxxxx X. Xxxxxxx, Esq., General Counsel of the Mallesons Xxxxxxx Xxxxxx (or other counsel Company, in form and scope satisfactory to the Manager receiving such opinions) as Agents and their counsel, substantially to all matters governed by New South Wales and Australian law;the effect set forth in Exhibit D hereto. (4f) An opinion and negative assurance letterOn the Closing Date, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to Agents shall have received the Manager receiving such opinion and letter, with respect addressed to such matters as the Manager receiving such Agents and dated the Closing Date, of Hxxxx Lovells US LLP, counsel to the Company, which opinion may reasonably requestand letter shall be satisfactory in form and scope to counsel for the Agents, substantially to the effect set forth in Exhibit E-1 and the Corporation and the Guarantor Exhibit E-2 hereto. (g) The Company shall have furnished to the Agents on the Closing Date a certificate, dated the Closing Date, of its President, Chief Executive Officer, Vice President or Chief Financial Officer stating that: (i) the representations, warranties and agreements of the Company in Section 1 hereof are true and correct as of such counsel Closing Date; the Company has complied in all material respects with all its agreements contained herein; and the conditions set forth in Sections 5(a) and 5(b) hereof have been fulfilled, (ii) in his opinion, as of the effective date of the Registration Statement, the Registration Statement did not contain an untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, if the certificate is being delivered pursuant to a Terms Agreement (as hereafter defined), as of the Applicable Time, the Disclosure Package did not contain an untrue statement of a material fact and did not 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, and the Prospectus as of its date and as of the Closing Date did not contain an untrue statement of a material fact and did not 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, (iii) since the respective dates as of which information is given in the Registration Statement, the Prospectus and the Disclosure Package, as amended or supplemented, there has not been any material adverse change in the condition, financial or other, or earnings of the Company, whether or not arising from transactions in the ordinary course of business, (iv) since the effective date of the Registration Statement, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus but which has not been so set forth or incorporated by reference therein, (v) the Company has no material contingent obligations which are required to be disclosed in the Registration Statement, the Prospectus or the Disclosure Package and are not disclosed therein, (vi) no stop order suspending the effectiveness of the Registration Statement is in effect on such documents as they reasonably request Closing Date and no proceedings for the purpose issuance of enabling them such an order have been taken or to pass upon the knowledge of the Company are contemplated by the Commission on or prior to such matters; andClosing Date, (vii) there are no material legal proceedings to which the Company is a party or of which property of the Company is the subject which are required to be disclosed in the Registration Statement, the Prospectus or the Disclosure Package and are not disclosed therein and (viii) there are no material contracts to which the Company is a party which are required to be disclosed in the Registration Statement, the Prospectus or the Disclosure Package and are not disclosed therein. (5h) From KPMG LLP (or successor independent public accountants with respect to the Auditor General Company within the meaning of the State of New South WalesSecurities Act and the rules and regulations thereunder) shall have furnished to the Agents, at or any successor independent auditorprior to the Closing Date, a letter, addressed to the Agents and dated as the Closing Date, confirming that they are independent public accountants with respect to the Company within the meaning of such time, the Securities Act and delivered at such timeare in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, substantially to the effect set forth in the form attached hereto as Annex A.Exhibit F hereto. (ci) There shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities of the Company or generally on the The New York Stock Exchange or the Australian Stock Exchange; , (ii) a general banking moratorium on commercial banking activities (A) in New York declared by either U.S. federal Federal or New York State regulatory authorities state authorities, (iii) any outbreak of hostilities involving the United States, any escalation of hostilities involving the United States, any attack on the United States or any act of terrorism in which the United States is involved, (Biv) in Australia declared by the Australian regulatory authorities or a material any major disruption in commercial banking or the settlement of securities settlement or clearance systems in the United States or Australia; (iii) any outbreak other relevant jurisdiction or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any a declaration of a national emergency or war by either of the United States or (v) such countries, or any other calamity or crisis or materially a material adverse change in general economic, political or financial conditions having an domestically or internationally (or the effect of international conditions on the U.S. or Australian financial markets; (iv) any downgrading markets in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse the effect on the holders of the Notes, which conditions in the United States on international financial markets shall be such) the effect of which is, in any case of any of the events described in clauses (i) through clause (iv) above, individually or in the aggregate(v), in the sole judgment of the ManagerPurchasing Agent, makes to make it impracticable or inadvisable to proceed with the consummation solicitation of offers to purchase or the purchase or delivery of the purchase of Notes by the Underwriters for sale to others Securities on the terms and in the manner contemplated in the Time Prospectus; provided, however, that in the event that any Agent agrees to purchase Securities as a principal (whether pursuant to a Terms Agreement or otherwise) there shall not have occurred any of Sale Prospectus and the Prospectus, each as then amended or supplementedforegoing subsequent to the date of such agreement. (dj) At Prior to the Time of DeliveryClosing Date, the Underwriters Company shall have been furnished to the Agents and to Hunton & Wxxxxxxx LLP, counsel to the Agents, such further certificates and documents as the Agents or counsel to the Agents may have reasonably requested prior to the Closing Date. (k) Subsequent to the execution of any Terms Agreement and prior to the Settlement Date: (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization”, as that term is defined by the Commission in Section 3(a)(62) under the Exchange Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, with such documents and opinions as they may reasonably require in order to evidence the accuracy and completeness possible negative implications, its rating of any of the representations and warranties, or the fulfillment of Company’s debt securities. If any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition conditions specified in this Section 6 5 shall not have been fulfilled when and as required to be fulfilled, this Agreement (or, at the option of any Agent, acting as principal, any applicable Terms Agreement) and all obligations of any Agent hereunder (or under any applicable Terms Agreement) may be terminated canceled by the Manager by notice any such Agent, insofar as this Agreement relates to such Agent at any time. Notice of such cancellation shall be given to the Corporation at any time at Company in writing, or prior to the Time of Delivery and such termination shall be without liability of any party to any other partyby facsimile, except that the telephone or telex confirmed in writing. The provisions of Section 5 hereofSections 3(c), the indemnity and contribution agreements set forth in Section 7 and 8 hereof3(h), and the provisions of Section 104, 13 7, 8, 9, 13, 14 and 16 hereof shall remain survive any such cancellation. All opinions, letters, evidence and certificates mentioned above or elsewhere in effectthis Agreement shall be deemed to be in compliance with the provisions hereof only if they are on the date of delivery in the form and scope reasonably satisfactory to counsel for the Agents.

Appears in 1 contract

Samples: Agency Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)

Conditions of Obligations. The Your obligations to sell the Shares as agent of each Underwriter hereunder Sea Containers and your obligations to purchase the Notes Shares pursuant to be delivered at the Time of Delivery any Terms Agreement will be subject to the accuracy of the representations and warranties on the part of Sea Containers herein on the Corporation most recent Effective Date, any applicable Representation Date and the Guarantor herein contained as of the date hereof and as of the Time of Delivery, to the accuracy of the statements of any duly authorized officer or official of the Corporation and the Guarantor made in any certificate furnished pursuant to the provisions of Section 6(b)(1)applicable Settlement Date, to the performance and observance by the Corporation and the Guarantor Sea Containers of all their respective covenants and other obligations hereunder agreements herein contained on its part to be performed and observed, and to the following further conditionsadditional conditions precedent: (1a) No The Registration Statement is effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement or the suspension of the qualification of the Shares for offering or sale in any part thereof jurisdiction shall have been issued under the Act or and not lifted, and no proceedings therefor initiated or threatened by the Commission; (2) no Underwriter for such purposes shall have been advised instituted and continue to be pending, or, to your knowledge or the knowledge of Sea Containers, shall be threatened, and all requests for additional information by the Corporation that Commission shall have been complied with to your reasonable satisfaction. (b) At each Settlement Date with respect to any Terms Agreement, if called for by such Terms Agreement, you shall have received: (1) The opinion, dated as of such Settlement Date, of Xxxxxx Xxxxxxx & Xxxxxxx LLP, United States counsel to Sea Containers, in form reasonably satisfactory to you and your counsel, to the effect that: (i) To such counsel's knowledge, except as described in the Prospectus, there are no legal or governmental proceedings pending or threatened in the United States to which Sea Containers or any of its subsidiaries is a party or to which any of its or their properties is subject and which are required to be disclosed in the Registration Statement or the Prospectus; (ii) The execution and delivery by Sea Containers of this Agreement and the Terms Agreement, the performance by Sea Containers of, or its compliance with, its obligations under this Agreement and the Terms Agreement, and the consummation of the transactions contemplated herein and in the Registration Statement, including the Time sale and delivery by Sea Containers of Sale Prospectus the Shares, the Rights and the Preferred Shares issuable upon the exercise of such Rights (assuming such Preferred Shares were issued on the date of such opinion), do not and will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of Sea Containers or any of the subsidiaries under, (A) any indenture, mortgage, deed of trust, loan agreement or any other agreement or instrument to be listed in an annex to such opinion, which shall include any material indenture, mortgage, deed of trust, loan agreement or any other agreement or instrument to which Sea Containers or any of its subsidiaries is a party, by which it is bound, or to which any of its property or assets is subject, and which is (x) described or referred to in the Prospectus, or incorporated by reference or is filed as an exhibit to the Registration Statement, (y) relating to a loan or other financing in an aggregate amount exceeding $100,000,000, or (z) reasonably requested by you, or (B) any United States federal or New York statute, rule or regulation or any decree, judgment or order, known to such counsel, of any United States federal or New York court or governmental agency or body specifically applicable to Sea Containers or any of its subsidiaries or any of their properties, except for such breaches, violations, defaults, liens, charges or encumbrances that would not have a Material Adverse Effect; (iii) No consent, approval, authorization or order of, or registration or qualification or filing of or with, any United States federal or New York governmental agency or, to the best of such counsel's knowledge, any United States federal or New York court is required for the performance by Sea Containers of its obligations under this Agreement and the Terms Agreement, or the consummation of the transactions contemplated by this Agreement in connection with the valid sale and delivery by Sea Containers of the Shares, the Rights associated therewith and the Preferred Shares issuable upon the exercise of such Rights, except, in the case of the Shares and the Rights associated therewith, (a) such as have been obtained or made under the 1933 Act, and (b) such as may be required under state securities laws in connection with the purchase and distribution of the Shares and Rights by you, and except in the case of the Preferred Shares issuable upon the exercise of the Rights associated with the Shares, (a) such as may be required under the 1933 Act or the 1934 Act, and (b) such as may be required under state securities laws in connection with the issuance of the Preferred Shares upon the exercise of such Rights; (iv) The Registration Statement is effective under the 1933 Act and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement is in effect and no proceedings for that purpose have been initiated or are pending or threatened; (I) The Registration Statement, the Prospectus and each amendment or supplement theretothereto comply as to form in all material respects with the requirements of the 1933 Act and the rules of the Commission thereunder; (II) each document incorporated by reference in the Registration Statement and Prospectus, at the time it such document was initially filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and the rules of the Commission thereunder; and (III) the descriptions in the Registration Statement and the Prospectus of contracts and other documents, of United States federal and New York statutes, and of legal and governmental proceedings in the United States, are accurate summaries in all material respects and fairly present the information required to be delivered given; (vi) such counsel does not know of any contracts or documents required to a purchaser be described in the Registration Statement or Prospectus, or required to be filed as exhibits to the Registration Statement or incorporated by reference in the Registration Statement or Prospectus, which are not described or filed or incorporated by reference as required, it being understood that such counsel need not express any opinion as to the financial statements and related notes and schedule or schedules or other financial information and statistical data in the Registration Statement or the Prospectus; (vii) The Class A Shares (including the Shares) and the Rights associated therewith are listed on the New York Stock Exchange, Inc. and the Pacific Exchange, Inc.; (viii) Sea Containers is eligible to use Form S-3 for the registration under the 1933 Act of the Notesoffer and sale of the Shares as described in the Prospectus, and the Registration Statement meet the requirements set forth in Rule 415(a)(1)(x) under the 1933 Act; (ix) Sea Containers is not an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940, as amended; (x) Orient-Express Hotels Inc. has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware; and (xi) Sea Containers' submission (pursuant to Section 16 of this Agreement) to the personal jurisdiction of the courts of the State of New York in the County of New York or the United States District Court for the Southern District of New York with respect to any action or proceeding arising out of, or based on, this Agreement is valid and enforceable against Sea Containers, and Sea Containers' appointment of Sea Containers America Inc. and Corporation Service Company as the designees, appointees and agents upon whom process may be served in any such action or proceeding is also valid and enforceable against Sea Containers. The enforceability of such submission and appointment is subject to, and may be limited by, (i) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization, fraudulent conveyance or other similar laws relating to or affecting the enforcement of the rights of creditors, (ii) general principles of equity, and (iii) the discretion of United States federal or New York State courts with respect to venue, as provided in 28 U.S.C. ss. 1404(a) and New York CPLR ss. 510, respectively. Xxxxxx Xxxxxxx & Xxxxxxx LLP may limit such opinion to the laws of the United States of America and the State of New York and the General Corporation Law of Delaware and may rely as to factual matters on certificates obtained from officers of Sea Containers and public officials. The opinion of Xxxxxx Xxxxxxx & Xxxxxxx LLP will also state that, while such counsel have not made any independent investigation of, are not passing upon and do not assume responsibility for, the accuracy or completeness of the statements contained in the Registration Statement or the Prospectus (other than as indicated in clause (III) of paragraph (v) above), on the basis of discussions regarding the business and affairs of Sea Containers and such counsel's familiarity with certain matters relating to such business and affairs as a result of having served as United States counsel for Sea Containers in connection with certain previous transactions, nothing has come to their attention that would lead them to believe that the Registration Statement (other than the financial statements and notes and other financial and statistical data included in the Registration Statement and Prospectus, as to which such counsel expresses no view), at the most recent Effective Date (or, if, after such Effective Date, Sea Containers files any documents pursuant to Section 13(a), 13(c) or 15(d) of the 1934 Act which are incorporated by reference into the Registration Statement, at the time of the most recent such filing), 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, or that the Prospectus (other than the financial statements and notes and other financial and statistical data included in the Registration Statement and Prospectus, as to which such counsel expresses no view), on the most recent Effective Date, or on the appropriate Settlement Date or Representation Date, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such timeunder which they were made, not misleading; and (3) subsequent to the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there shall not have been any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (b) At the Time of Delivery the Manager shall have received: (1) A certificate or certificates, dated as of such time, signed by the Chief Executive of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that 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 and that, subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus and, if applicable, the Time of Sale Prospectus with respect to the Notes, there has been no material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus;. (2) An The opinion, dated as of such timeSettlement Date, of Mallesons Xxxxxxx Xxxxxxxx Xxxxxx, Australian Bermuda counsel to Sea Containers, in form reasonably satisfactory to you and your counsel, to the Corporation effect that: (i) Each of Sea Containers, Orient-Express Hotels Ltd., Sea Containers SPC Ltd. and Contender 2 Ltd. is an exempted company duly incorporated with limited liability, validly existing and in good standing under the laws of Bermuda; (ii) Sea Containers has all requisite corporate power and authority under its Constitutional Documents (as defined) to own, lease, manage and operate its properties and to conduct its business as described in the Registration Statement and the GuarantorProspectus and to enter into and perform its obligations under this Agreement and the Terms Agreement; (iii) This Agreement and the Terms Agreement have been duly authorized, executed and delivered by Sea Containers and constitute valid and binding obligations of Sea Containers enforceable against Sea Containers in accordance with their terms; (iv) The issued and outstanding Class A Shares have been duly authorized and validly issued and are fully paid and non-assessable; (v) None of the outstanding Class A Shares were issued in violation of any pre-emptive or such other counsel satisfactory similar rights of any security holder of Sea Containers pursuant to the Manager receiving such opinionConstitutional Documents (as defined); (vi) The Shares have been duly authorized for sale and delivery to you pursuant to the terms of this Agreement and the Terms Agreement, and when sold and delivered by Sea Containers pursuant to the terms of this Agreement and the Terms Agreement, against payment of the consideration set forth in the Terms Agreement, will be validly issued, fully paid and non-assessable, and no holder of the Shares is or will be subject to personal liability with respect to the Corporation debts or obligations of Sea Containers solely by reason of being such a holder. (vii) The Rights Agreement has been duly constitutedauthorized, executed and delivered by Sea Containers, the validity of the Notes and the Guarantee of the Notes Rights have been duly authorized by the GuarantorSea Containers, the Registration Statement, Rights attached to the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require with respect to matters governed by New South Wales and Australian lawShares are validly issued, and the Corporation Preferred Shares issuable upon the exercise of the Rights have been duly authorized by Sea Containers and validly reserved for issuance upon the Guarantor shall have furnished to such counsel such documents as he requests for exercise of the purpose of enabling him to pass Rights and, when issued upon such matters; exercise in rendering such opinionsaccordance with the terms of the Rights Agreement, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States lawwill be validly issued, fully paid and non-assessable; (3viii) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to Based solely on the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America results of the Notes and the Guarantee of the Notes by the GuarantorLitigation Search (as defined), the Registration Statementthere is not pending any action, the Prospectussuit, the Time of Sale Prospectus (if applicable) and other related matters as they may requireproceeding, and the Corporation and the Guarantor shall have furnished inquiry or investigation in Bermuda, to such counsel such documents as they request for the purpose of enabling them which Sea Containers, Orient-Express Hotels Ltd., Sea Containers SPC Ltd. or Contender 2 Ltd. is a party or to pass upon such matters; in giving their opinion, Xxxxxxxx & Xxxxxxxx may rely on the opinions of the Mallesons Xxxxxxx Xxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by New South Wales and Australian law; (4) An opinion and negative assurance letter, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to such matters as the Manager receiving such opinion may reasonably request, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters; and (5) From the Auditor General of the State of New South Wales, or any successor independent auditor, a letter, dated as of such time, and delivered at such time, substantially in the form attached hereto as Annex A. (c) 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 or the Australian Stock Exchange; (ii) a general moratorium on commercial banking activities (A) in New York declared by either U.S. federal or New York State regulatory authorities or (B) in Australia declared by the Australian regulatory authorities or a material disruption in commercial banking or securities settlement or clearance systems in the United States or Australia; (iii) any outbreak or escalation of hostilities, other insurrections or armed conflict in which the United States property of America Sea Containers, Orient-Express Hotels Ltd., Sea Containers SPC Ltd. or the Commonwealth of Australia Contender 2 Ltd. is involved subject, before or any declaration of a national emergency or war by either of such countries, or any other calamity or crisis or materially adverse change in general economic, political or financial conditions having an effect on the U.S. or Australian financial markets; (iv) any downgrading in the rating of any debt securities of the Corporation or the Guarantor brought by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); court or (v) any amendment to the lawsgovernmental agency or body in Bermuda, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have result in a material adverse effect on Material Adverse Effect, or which could reasonably be expected to materially and adversely affect the holders of the Notes, which in the case of any of the events described in clauses (i) through (iv) above, individually properties or in the aggregate, in the sole judgment of the Manager, makes it impracticable assets thereof or inadvisable to proceed with the consummation of the purchase transactions contemplated by this Agreement or the performance by Sea Containers of Notes by the Underwriters for sale to others on the terms and in the manner contemplated in the Time of Sale Prospectus and the Prospectus, each as then amended or supplementedits obligations hereunder. (dix) At The information in the Time Prospectus under the captions "Risk Factors - Other Risk Factors - We cannot assure you that a judgment of Delivery, the Underwriters shall have been furnished with such documents and opinions as they may reasonably require a United States court for liabilities under U.S. securities laws would be enforceable in order to evidence the accuracy and completeness of any of the representations and warrantiesBermuda, or that an original action can be brought in Bermuda against Sea Containers for liabilities under U.S. securities laws," "Risk Factors - Other Risks - Sea Containers' directors and officers may control the fulfillment outcome of any most matters submitted to a vote and of its shareholders," "Risk Factors - Other Risks - Provisions in Sea Containers' charter documents may discourage potential acquisitions of Sea Containers, even those which the conditions, herein contained; holders of a majority of its class A common shares might favor," and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale "Description of the Notes as herein contemplated shall be satisfactory in form and substance Common Shares," to the Underwriters. If any condition specified extent such information constitutes matters of Bermuda law, is accurate in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Manager by notice to the Corporation at any time at or prior to the Time of Delivery and such termination shall be without liability of any party to any other party, except that the provisions of Section 5 hereof, the indemnity and contribution agreements set forth in Section 7 and 8 hereof, and the provisions of Section 10, 13 and 16 hereof shall remain in effectall material respects.

Appears in 1 contract

Samples: Sales Agreement (Sea Containers LTD /Ny/)

Conditions of Obligations. The obligations of each an Underwriter hereunder to purchase the Notes to be delivered at the Time of Delivery Securities identified on a Schedule will be subject to the continued accuracy of the representations and warranties on the part of the Corporation and the Guarantor herein Company contained as of the date hereof and as of the Time of Deliveryherein, to the accuracy of the statements of any duly authorized officer or official of the Corporation and the Guarantor Company's officers made in any certificate furnished pursuant to the provisions of Section 6(b)(1)hereof, to the performance and observance by the Corporation and the Guarantor Company of all their respective covenants and other obligations hereunder agreements contained herein and to the following further additional conditions: (1a) No stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under and no order shall have been issued by the Act Commission suspending or preventing the use of any Prospectus, and no proceedings therefor initiated for such purpose shall be pending before or threatened by the Commission; . (2b) no On or prior to the applicable Closing Date, the purchasing Underwriter shall have been advised by furnished such documents, certificates, accountants' letters and opinions as it may reasonably request for the Corporation purpose of enabling it or its counsel to determine the accuracy, completeness or satisfaction of any of the representations, warranties or conditions herein contained. (c) At each Closing Date, the purchasing Underwriter shall have received a certificate, dated such Closing Date, of the President, a Vice President, the General Manager, the Treasurer or the Controller of the Company to the effect that, to the best of such officer's knowledge, the conditions set forth in subsections (a) and (d) of this Section 5 have been satisfied, and as to the continued accuracy of the representations and warranties of the Company set forth herein. (d) No order suspending the sale of the Securities in any jurisdiction designated pursuant to subsection 3(i) hereof shall have been issued, and no proceeding for that purpose shall have been instituted or, to the knowledge of the purchasing Underwriter or the Company, shall be contemplated. (e) Subsequent to the date of the applicable Schedule and on or prior to the applicable Closing Date, there shall not have occurred (i) since the date of such Schedule or since the respective dates as of which information is given in the Registration Statement, any material adverse change in the Time condition, financial or otherwise, or in the earnings, business affairs or business prospects of Sale Prospectus the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, or (ii) if there shall have occurred any material adverse change in the financial markets in the United States or any outbreak or escalation of hostilities or other national or international calamity or crisis which, in the reasonable judgement of such Underwriter, would have a material adverse effect on the ability of such Underwriter to market the Securities or enforce contracts for the sale of the Securities, or (iii) any suspension by the Commission or a national securities exchange of trading in any securities of the Company, or suspension of trading generally on either the American Stock Exchange or the ProspectusNew York Stock Exchange, or the fixing of minimum or maximum prices for trading, or the requirement of maximum ranges for prices for securities by either of said exchanges or by order of the Commission or any amendment other governmental authority, or supplement theretoa banking moratorium declared by either Federal or New York authorities, or a declaration of a banking moratorium by the relevant authorities in the country or countries of origin of any foreign currency or currencies in which the Securities are denominated or payable, or (iv) a lowering of the rating assigned by any nationally recognized securities rating agency to any debt securities of the Company as of the date of any applicable Schedule since that date, or a public announcement by any such rating agency that it has under surveillance or review, with possible negative implications, its rating of any debt securities of the Company, or (v) any facts coming to such Underwriter's attention that would cause such Underwriter to believe that the Prospectus, at the time it was required to be delivered to a purchaser of the NotesSecurities, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time of such timedelivery, not misleading; and (3) subsequent to the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there shall not have been any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus;. (bf) At the Time of Delivery applicable Closing Date, the Manager purchasing Underwriter shall have received: (1) A certificate or certificatesreceived an opinion of counsel, dated as of such timeClosing Date, signed by the Chief Executive of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that 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 and that, subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus and, if applicable, the Time of Sale Prospectus with respect to the Notes, there has been no material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (2) An opinion, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion, with respect to the Corporation being duly constituted, the validity of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their opinion, Xxxxxxxx & Xxxxxxxx may rely on the opinions of the Mallesons Xxxxxxx Xxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by New South Wales and Australian law; (4) An opinion and negative assurance letter, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to such matters as the Manager receiving such opinion may reasonably request, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters; and (5) From the Auditor General of the State of New South Wales, or any successor independent auditor, a letter, dated as of such time, and delivered at such time, substantially in the form attached hereto as Annex A. (c) 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 or the Australian Stock Exchange; (ii) a general moratorium on commercial banking activities (A) in New York declared by either U.S. federal or New York State regulatory authorities or (B) in Australia declared by the Australian regulatory authorities or a material disruption in commercial banking or securities settlement or clearance systems in the United States or Australia; (iii) any outbreak or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any declaration of a national emergency or war by either of such countries, or any other calamity or crisis or materially adverse change in general economic, political or financial conditions having an effect on the U.S. or Australian financial markets; (iv) any downgrading in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse effect on the holders of the Notes, which in the case of any of the events described in clauses (i) through (iv) above, individually or in the aggregate, in the sole judgment of the Manager, makes it impracticable or inadvisable to proceed with the consummation of the purchase of Notes by the Underwriters for sale to others on the terms and in the manner contemplated in the Time of Sale Prospectus and the Prospectus, each as then amended or supplemented. (d) At the Time of Delivery, the Underwriters shall have been furnished with such documents and opinions as they may reasonably require in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Manager by notice to the Corporation at any time at or prior to the Time of Delivery and such termination shall be without liability of any party to any other party, except that the provisions of Section 5 6(f) hereof, the indemnity and contribution agreements set forth in Section 7 and 8 hereof, and the provisions of Section 10, 13 and 16 hereof shall remain in effect.

Appears in 1 contract

Samples: Underwriting Agreement (Paccar Financial Corp)

Conditions of Obligations. The obligations obligation of each Underwriter hereunder any Agent, as an agent of the Company, to solicit offers to purchase the Notes on the Closing Date and at any time before which the Company has advised the Agents to suspend solicitation of offers to purchase Notes pursuant to Section 2(a) or after which the Company has advised the Agents that the solicitation of offers to purchase Notes which was suspended pursuant to Section 2(a) may be delivered at resumed (the Time "Solicitation Time"), the obligation of Delivery will any Agent to purchase Notes as principal pursuant to any Terms Agreement, and the obligation of any person who has agreed to purchase Notes to make payment for and accept delivery of Notes shall in each case be subject to the accuracy of the following conditions: (a) That all representations and warranties on the part and other statements of the Corporation Company herein (and, in the case of an obligation of such Agent under a Terms Agreement, in or incorporated in such Terms Agreement by reference) are true and the Guarantor herein contained as of the date hereof correct (i) at and as of the Closing Date; (ii) at and as of any applicable Representation Date that is prior to such settlement date or Time of Delivery, to as the accuracy of the statements case may be; (iii) at and as of any duly authorized officer such settlement date or official Time of the Corporation and the Guarantor made Delivery referred to in any certificate furnished pursuant to the provisions of Section 6(b)(12(b), to as the performance case may be; and observance by (iv) during any Solicitation Time. (b) That the Corporation and the Guarantor Company shall have performed all of all their respective covenants and other its obligations hereunder and theretofore in each case to the following further conditions:be performed. (1c) No stop order suspending the effectiveness of the Registration Statement or nor any part thereof order directed to any document incorporated by reference in any Prospectus shall have been issued under and to the Act knowledge of the Company or proceedings therefor the Agents, no stop order proceeding shall have been initiated or threatened by the Commission; (2) no Underwriter any request of the Commission for inclusion of additional information in the Registration Statement or any Prospectus or otherwise shall have been advised by complied with to the Corporation that reasonable satisfaction of the Registration Statement, Agents or counsel for the Time of Sale Prospectus or Agents; and the Prospectus, or Company shall not have filed with the Commission any amendment or supplement thereto, at to the time it was required to be delivered to a purchaser Registration Statement or any Prospectus which have not been reviewed by the Agent. (d) No order suspending the sale of the NotesNotes in any jurisdiction designated by the Agents pursuant to Section 4(m) hereof shall have been issued, contained and no proceeding for that purpose shall have been initiated or threatened. (e) No Agent shall have discovered and disclosed to the Company that the Registration Statement or any Prospectus contains an untrue statement of a fact which, in the opinion of counsel for such Agent, is material fact or omitted omits to state a fact which, in the opinion of such counsel, is material fact and is required to be stated therein or is necessary in order to make the statements therein, therein not misleading. (f) Except as contemplated in the light of the circumstances existing at such time, not misleading; and (3) subsequent to the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there shall not have been any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (b) At the Time of Delivery the Manager shall have received: (1) A certificate or certificates, dated as of such time, signed by the Chief Executive of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that 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 and that, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been any material change, on a consolidated basis, in the shareholder's equity, short-term debt, long-term debt, ratio of earnings to fixed charges, total assets, total revenue or total net income of the Company and its subsidiaries, in the condition (financial or other) or in the earnings of the Company, its subsidiaries, or the affairs, or business of the Company and its subsidiaries whether or not arising in the ordinary course of business, or any change in the rating assigned by any nationally recognized securities rating agency to any debt securities of the Company, which, in the reasonable judgment of the Agents, makes it impractical or inadvisable to offer or deliver the Notes on the terms and in the manner contemplated in the Prospectus. (g) At the Closing Date and the Time of Delivery, the Agents shall have received the opinion, addressed to the Agents and dated the Closing Date, of Xxxxx X. Xxxxxxx, Esq., Counsel of the Company, in form and substance satisfactory to the Agents and their counsel, to the effect that: (i) The Company has been duly incorporated and is validly existing and in good standing under the laws of Delaware and has all corporate power and authority necessary to own its properties and conduct the business in which it is engaged as described in the Prospectus; the Company is duly qualified to do business as a foreign corporation in good standing in all jurisdictions in which it owns or leases substantial properties or in which the conduct of its business requires such qualification and the failure so to qualify would have a material adverse effect on the Company; and except as may be disclosed in the Registration Statement, all outstanding shares of capital stock of the Company are owned by a wholly owned subsidiary of American Express free and clear of any lien, pledge and encumbrance or, to the best of such counsel's knowledge, any claim of any third party; (ii) Such counsel has no reason to believe that either the Registration Statement or the Prospectus or any amendment or supplement thereto contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading (except that such counsel need express no opinion as to the financial statements or schedules or other data of a financial or related statistical nature); (iii) Such counsel does not know of any litigation or governmental proceeding pending or threatened against the Company or its subsidiaries which would affect the subject matter of this Agreement or the Indenture or is required to be disclosed in the Registration Statement or Prospectus which is not disclosed and correctly summarized therein; (iv) Such counsel does not know of any contracts or other documents which are required to be filed as exhibits to the Registration Statement or incorporated by reference in the Prospectus by the Act, the Exchange Act or the Trust Indenture Act or 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; (v) To the best of such counsel's knowledge, neither the Company nor its subsidiaries is in violation of their corporate charter or by-laws; or in default under any agreement, indenture or instrument, the effect of which default would be material to the Company; (vi) Neither the issuance or sale of the Notes nor the execution, delivery and performance of this Agreement and the Indenture by the Company and the consummation of any other transactions contemplated by this Agreement or the Indenture will conflict with, or result in a breach or violation of, or result in the creation or imposition of any lien, charge or encumbrance upon any of the assets of the Company or its subsidiaries pursuant to the terms of, or constitute a default under, any agreement, indenture or instrument known to such counsel to which the Company or its subsidiaries is a party or by which it or its properties is bound, or result in a violation of the corporate charter or by-laws of the Company or its subsidiaries or any order, rule or regulation (applicable to the Company, or its subsidiaries or their respective properties) of any court or governmental agency having jurisdiction over the Company, or its subsidiaries or their respective properties; except as required by the Act, the Trust Indenture Act and applicable state securities laws, no consent, authorization or order of, or filing or registration with, any court or governmental agency is required for the execution, delivery and performance of this Agreement and the Indenture, except as has been duly obtained or made and is in full force and effect; (vii) The Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act; the Indenture constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing; (viii) The Notes have been duly authorized by all necessary corporate action and, when executed by the proper officers of the Company and authenticated as specified in the Indenture and delivered against payment therefor in accordance with this Agreement, will be legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture and enforceable in accordance with their terms subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting creditors' rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing; (ix) The Indenture and Notes conform in all material respects to the statements concerning each of them in the Prospectus; (x) The Registration Statement, and any amendment or supplement filed by the Company, has become effective under the Act, the Prospectus was filed with the Commission pursuant to Rule 424(b) and, to the best knowledge of such counsel, no stop order suspending its effectiveness has been issued and no proceeding for that purpose is pending or threatened by the Commission; (xi) The Registration Statement, the Prospectus and, if applicableand each amendment or supplement thereto comply as to form in all material respects with the applicable requirements of the Act, the Time Exchange Act, the Trust Indenture Act and the Rules and Regulations (except that no opinion need be expressed as to the financial statements or schedules or other data of a financial or related statistical nature, or to the Forms T-1); (xii) The statements made in the Prospectus under the caption "Description of Debt Securities" and "Description of Notes", insofar as they purport to summarize the provisions of the Notes and the Indenture, fairly present the information called for with respect thereto by Form S-3; (xiii) The statements made in the Prospectus under the caption "Certain Federal Income Tax Considerations" insofar as such statements purport to summarize certain federal income tax laws of the United States, constitute a fair summary of the principal United States federal income tax consequences of an investment in the Notes; (xiv) Neither the issuance or sale of the Notes nor the execution, delivery and performance of this Agreement or the Indenture by the Company and the consummation of any other transaction contemplated by this Agreement or the Indenture will conflict with, or result in a breach or violation of the Agreements of Sale Prospectus with respect to the Notes, there and Purchase; and (xv) This Agreement has been no duly authorized, executed and delivered by the Company; (h) There shall not have occurred: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or the establishment of minimum prices 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) the engagement by the United States in hostilities which have resulted in the declaration of a national emergency or war; (iii) any banking moratorium declared by U.S. Federal or New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the occurrence of any other calamity or crisis or any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the existing financial, political or economic conditions in the United States or elsewhere; or (v) any downgrading in the rating accorded the Notes or any other debt securities of the Company 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, or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating), if the effect thereof in the judgment of such Agent makes it impracticable or inadvisable to proceed with the solicitation of offers to purchase Notes or the financial purchase of Notes from the Company as principal pursuant to the applicable Terms Agreement, as the case may be; (i) The Company shall have furnished or economic prospects caused to be furnished to such Agent certificates of officers of the Guarantor except Company dated the Closing Date, dated the Time of Delivery, dated the date the Company has advised the Agents that the solicitation of offers to purchase Notes which was suspended pursuant to Section 2(a) may be resumed, and dated the applicable dates referred to in Section 4(o) in such form and executed by such officers of the Company as shall be satisfactory to such Agent, as to the accuracy of the representations and warranties of the Company herein at and as of the Closing Date or such applicable date, as the case may be, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to the Closing Date or such applicable date, as the case may be, as to the matters set forth in subsections (c) and (f) of this Section 6, and as to such other matters as such Agent may reasonably request; (j) The Company shall have furnished to the Agents on the Closing Date or contemplated by the Time of Sale Prospectus or Delivery, as the Prospectuscase may be, a letter of Ernst & Young LLP addressed to the Agents and dated such applicable date, to the effect set forth in Exhibit B hereto; (2k) An opinionThe Agents shall have received from Cleary, Gottlieb, Xxxxx & Xxxxxxxx, counsel for the Agents, or other counsel reasonably satisfactory to both the Agents and the Company, such opinion or opinions, dated as the Closing Date or the Time of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to Delivery (if required by the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinionapplicable Terms Agreement), with respect to the Corporation being duly constitutedissuance and sale of the Notes, the validity of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they the Agents may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may reasonably require, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their opinion, Xxxxxxxx & Xxxxxxxx may rely on the opinions of the Mallesons Xxxxxxx Xxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by New South Wales and Australian law; (4) An opinion and negative assurance letter, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to such matters as the Manager receiving such opinion may reasonably request, and the Corporation and the Guarantor Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters; and (5l) From the Auditor General of the State of New South Wales, or any successor independent auditor, a letter, dated as of such time, and delivered at such time, substantially in the form attached hereto as Annex A. (c) 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 or the Australian Stock Exchange; (ii) a general moratorium on commercial banking activities (A) in New York declared by either U.S. federal or New York State regulatory authorities or (B) in Australia declared by the Australian regulatory authorities or a material disruption in commercial banking or securities settlement or clearance systems in the United States or Australia; (iii) any outbreak or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any declaration of a national emergency or war by either of such countries, or any other calamity or crisis or materially adverse change in general economic, political or financial conditions having an effect on the U.S. or Australian financial markets; (iv) any downgrading in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment Prior to the laws, regulations Closing Date or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse effect on the holders of the Notes, which in the case of any of the events described in clauses (i) through (iv) above, individually or in the aggregate, in the sole judgment of the Manager, makes it impracticable or inadvisable to proceed with the consummation of the purchase of Notes by the Underwriters for sale to others on the terms and in the manner contemplated in the Time of Sale Prospectus and the Prospectus, each as then amended or supplemented. (d) At the Time of Delivery, as the Underwriters case may be, the Company shall have been furnished with to the Agents such further information, certificates and documents and opinions as they the Agents or counsel to the Agents may reasonably require request. All opinions, letters, evidence and certificates mentioned above or elsewhere in order this Agreement shall be deemed to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor be in connection compliance with the issuance and sale of provisions hereof only if they are in the Notes as herein contemplated shall be satisfactory in form and substance satisfactory to counsel for the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Manager by notice to the Corporation at any time at or prior to the Time of Delivery and such termination shall be without liability of any party to any other party, except that the provisions of Section 5 hereof, the indemnity and contribution agreements set forth in Section 7 and 8 hereof, and the provisions of Section 10, 13 and 16 hereof shall remain in effectAgents.

Appears in 1 contract

Samples: Agency Agreement (American Express Credit Corp)

Conditions of Obligations. The Your obligations to sell the Shares as agent of each Underwriter hereunder Sea Containers and your obligations to purchase the Notes Shares pursuant to be delivered at the Time of Delivery any Terms Agreement will be subject to the accuracy of the representations and warranties on the part of Sea Containers herein on the Corporation most recent Effective Date, any applicable Representation Date and the Guarantor herein contained as of the date hereof and as of the Time of Delivery, to the accuracy of the statements of any duly authorized officer or official of the Corporation and the Guarantor made in any certificate furnished pursuant to the provisions of Section 6(b)(1)applicable Settlement Date, to the performance and observance by the Corporation and the Guarantor Sea Containers of all their respective covenants and other obligations hereunder agreements herein contained on its part to be performed and observed, and to the following further conditionsadditional conditions precedent: (1a) No The Registration Statements are effective under the 1933 Act, and no stop order suspending the effectiveness of the Registration Statement Statements or the suspension of the qualification of the Shares for offering or sale in any part thereof jurisdiction shall have been issued under the Act or and not lifted, and no proceedings therefor initiated or threatened by the Commission; (2) no Underwriter for such purposes shall have been advised instituted and continue to be pending, or, to your knowledge or the knowledge of Sea Containers, shall be threatened, and all requests for additional information by the Corporation that Commission shall have been complied with to your reasonable satisfaction. (b) At each Settlement Date with respect to any Terms Agreement, if called for by such Terms Agreement, you shall have received: (1) The opinion, dated as of such Settlement Date, of Xxxxxx Xxxxxxx & Xxxxxxx LLP, United States counsel to Sea Containers, in form reasonably satisfactory to you and your counsel, to the effect that: (i) To such counsel's knowledge, except as described in the Prospectus, there are no legal or governmental proceedings pending or threatened in the United States to which Sea Containers or any of its subsidiaries is a party or to which any of its or their properties is subject and which are required to be disclosed in the Registration StatementStatements or the Prospectus; (ii) The execution and delivery by Sea Containers of this Agreement and the Terms Agreement, the Time performance by Sea Containers of, or its compliance with, its obligations under this Agreement and the Terms Agreement, and the consummation of Sale Prospectus the transactions contemplated herein and in the Registration Statements, including the sale and delivery by Sea Containers of the Shares, the Rights and the Preferred Shares issuable upon the exercise of such Rights (assuming such Preferred Shares were issued on the date of such opinion), do not and will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of Sea Containers under, (A) any indenture, mortgage, deed of trust, loan agreement or any other agreement or instrument which is described or referred to in the Prospectus, or is filed or incorporated by reference as an exhibit to the Registration Statements and to which Sea Containers or any of its subsidiaries is a party or by which they are bound or to which any of their property or assets is subject, or (B) any United States federal or New York statute, rule or regulation or any decree, judgment or order, known to such counsel, of any United States federal or New York court or governmental agency or body specifically applicable to Sea Containers or any of its subsidiaries or any of their properties, except for such breaches, violations, defaults, liens, charges or encumbrances that would not have a Material Adverse Effect; (iii) No consent, approval, authorization or order of, or registration or qualification or filing of or with, any United States federal or New York governmental agency or Bermuda governmental body or, to the best of such counsel's knowledge, any United States federal or New York court is required for the performance by Sea Containers of its obligations under this Agreement and the Terms Agreement, or the consummation of the transactions contemplated by this Agreement in connection with the valid sale and delivery by Sea Containers of the Shares, the Rights associated therewith and the Preferred Shares issuable upon the exercise of such Rights, except, in the case of the Shares and the Rights associated therewith, (a) such as have been obtained or made under the 1933 Act, and (b) such as may be required under state securities laws in connection with the purchase and distribution of the Shares and Rights by you, and except in the case of the Preferred Shares issuable upon the exercise of the Rights associated with the Shares, (a) such as may be required under the 1933 Act or the 1934 Act, and (b) such as may be required under state securities laws in connection with the issuance of the Preferred Shares upon the exercise of such Rights; (iv) The Registration Statements are effective under the 1933 Act and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statements is in effect and no proceedings for that purpose have been initiated or are pending or threatened; (I) The Registration Statements, the Prospectus and each amendment or supplement theretothereto comply as to form in all material respects with the requirements of the 1933 Act and the rules of the Commission thereunder; (II) each document incorporated by reference in the Registration Statements and Prospectus, at the time it such document was initially filed with the Commission, complied as to form in all material respects with the requirements of the 1934 Act and the rules of the Commission thereunder; (III) the descriptions in the Registration Statements and the Prospectus of contracts and other documents, of United States federal and New York statutes, and of legal and governmental proceedings in the United States, are accurate summaries in all material respects and fairly present the information required to be delivered given; (vi) such counsel does not know of any contracts or documents required to a purchaser be described in the Registration Statements or Prospectus, or required to be filed as exhibits to the Registration Statements or incorporated by reference in the Registration Statements or Prospectus, which are not described or filed or incorporated by reference as required, it being understood that such counsel need express no opinion as to the financial statements and related notes and schedule or schedules or other financial information and statistical data in the Registration Statements or the Prospectus; (vii) The Class A Shares, (including the Shares) and the Rights associated therewith are listed on the New York Stock Exchange, Inc. and the Pacific Exchange; (viii) Sea Containers is eligible to use Form S-3 for the registration under the 1933 Act of the Notesoffer and sale of the Shares as described in the Prospectus, and the Registration Statements meet the requirements set forth in Rule 415(a)(1)(x) under the 1933 Act; (ix) Sea Containers is not an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the Investment Company Act of 1940, as amended; (x) Orient-Express Hotels Inc. has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware; and (xi) Sea Containers' submission (pursuant to Section 16 of this Agreement) to the personal jurisdiction of the courts of the State of New York in the County of New York or the United States District Court for the Southern District of New York with respect to any action or proceeding arising out of, or based on, this Agreement is valid and enforceable against Sea Containers, and Sea Containers' appointment of Sea Containers America Inc. and Corporation Service Company as the designees, appointees and agents upon whom process may be served in any such action or proceeding is also valid and enforceable against Sea Containers. The enforceability of such submission and appointment is subject to, and may be limited by, (i) bankruptcy, insolvency, liquidation, receivership, moratorium, reorganization, fraudulent conveyance or other similar laws relating to or affecting the enforcement of the rights of creditors, (ii) general principles of equity, and (iii) the discretion of United States federal or New York State courts with respect to venue, as provided in 28 U.S.C. ss. 1404(a) and New York CPLR ss. 510, respectively. Xxxxxx Xxxxxxx & Xxxxxxx LLP may limit such opinion to the laws of the United States of America and the State of New York and the General Corporation Law of Delaware and may rely as to factual matters on certificates obtained from officers of Sea Containers and public officials. The opinion of Xxxxxx Xxxxxxx & Xxxxxxx LLP will also state that, while such counsel have not made any independent investigation of, are not passing upon and do not assume responsibility for, the accuracy or completeness of the statements contained in the Registration Statements or the Prospectus (other than as indicated in clause (III) of paragraph (v) above), on the basis of discussions regarding the business and affairs of Sea Containers and such counsel's familiarity with certain matters relating to such business and affairs as a result of having served as United States counsel for Sea Containers in connection with certain previous transactions, nothing has come to their attention that would lead them to believe that the Registration Statements (other than the financial statements and notes and other financial and statistical data included in the Registration Statements and Prospectus, as to which such counsel expresses no view), at the most recent Effective Date (or, if, after such Effective Date, Sea Containers files any documents pursuant to Section 13(a), 13(c) or 15(d) of the 1934 Act which are incorporated by reference into the Registration Statements, at the time of the most recent such filing), 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, or that the Prospectus (other than the financial statements and notes and other financial and statistical data included in the Registration Statements and Prospectus, as to which such counsel expresses no view), on the most recent Effective Date, or on the appropriate Settlement Date or Representation Date, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such timeunder which they were made, not misleading; and (3) subsequent to the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there shall not have been any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (b) At the Time of Delivery the Manager shall have received: (1) A certificate or certificates, dated as of such time, signed by the Chief Executive of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that 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 and that, subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus and, if applicable, the Time of Sale Prospectus with respect to the Notes, there has been no material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus;. (2) An The opinion, dated as of such timeSettlement Date, of Mallesons Xxxxxxx XxxxxxXxxxxxxx & Xxxxx, Australian Bermuda counsel to Sea Containers, in form reasonably satisfactory to you and your counsel, to the Corporation effect that: (i) Each of Sea Containers, Orient-Express Hotels Ltd., Sea Containers SPC Ltd.and Contender 2 Ltd. is an exempted company duly incorporated with limited liability, validly existing and in good standing under the laws of Bermuda; (ii) Sea Containers has all requisite corporate power and authority under its Constitutional Documents (as defined) to own, lease, manage and operate its properties and to conduct its business as described in the Registration Statements and the GuarantorProspectus and to enter into and perform its obligations under this Agreement [and the Terms Agreement]; (iii) This Agreement [and the Terms Agreement] have been duly authorized, executed and delivered by Sea Containers and constitute valid and binding obligations of Sea Containers enforceable against Sea Containers in accordance with their terms; (iv) The issued and outstanding Class A Shares have been duly authorized and validly issued and are fully paid and non-assessable; (v) None of the outstanding Class A Shares were issued in violation of any pre-emptive or such other counsel satisfactory similar rights of any security holder of Sea Containers pursuant to the Manager receiving such opinionConstitutional Documents (as defined); (vi) The Shares have been duly authorized for sale and delivery to you pursuant to the terms of this Agreement and the Terms Agreement, and when sold and delivered by Sea Containers pursuant to the terms of this Agreement and the Terms Agreement, against payment of the consideration set forth in the Terms Agreement, will be validly issued, fully paid and non-assessable, and no holder of the Shares is or will be subject to personal liability with respect to the Corporation debts or obligations of Sea Containers solely by reason of being such a holder. (vii) The Rights Agreement has been duly constitutedauthorized, executed and delivered by Sea Containers, the validity of the Notes and the Guarantee of the Notes Rights have been duly authorized by the GuarantorSea Containers, the Registration Statement, Rights attached to the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require with respect to matters governed by New South Wales and Australian lawShares are validly issued, and the Corporation Preferred Shares issuable upon the exercise of the Rights have been duly authorized by Sea Containers and validly reserved for issuance upon the Guarantor shall have furnished to such counsel such documents as he requests for exercise of the purpose of enabling him to pass Rights and, when issued upon such matters; exercise in rendering such opinionsaccordance with the terms of the Rights Agreement, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States lawwill be validly issued, fully paid and non-assessable; (3viii) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to Based solely on the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America results of the Notes and the Guarantee of the Notes by the GuarantorLitigation Search (as defined), the Registration Statementthere is not pending any action, the Prospectussuit, the Time of Sale Prospectus (if applicable) and other related matters as they may requireproceeding, and the Corporation and the Guarantor shall have furnished inquiry or investigation in Bermuda, to such counsel such documents as they request for the purpose of enabling them which Sea Containers, Orient-Express Hotels Ltd., Sea Containers SPC Ltd.or Contender 2 Ltd. is a party or to pass upon such matters; in giving their opinion, Xxxxxxxx & Xxxxxxxx may rely on the opinions of the Mallesons Xxxxxxx Xxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by New South Wales and Australian law; (4) An opinion and negative assurance letter, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to such matters as the Manager receiving such opinion may reasonably request, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters; and (5) From the Auditor General of the State of New South Wales, or any successor independent auditor, a letter, dated as of such time, and delivered at such time, substantially in the form attached hereto as Annex A. (c) 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 or the Australian Stock Exchange; (ii) a general moratorium on commercial banking activities (A) in New York declared by either U.S. federal or New York State regulatory authorities or (B) in Australia declared by the Australian regulatory authorities or a material disruption in commercial banking or securities settlement or clearance systems in the United States or Australia; (iii) any outbreak or escalation of hostilities, other insurrections or armed conflict in which the United States property of America Sea Containers, Orient-Express Hotels Ltd., Sea Containers SPC Ltd. or the Commonwealth of Australia Contender 2 Ltd. is involved subject, before or any declaration of a national emergency or war by either of such countries, or any other calamity or crisis or materially adverse change in general economic, political or financial conditions having an effect on the U.S. or Australian financial markets; (iv) any downgrading in the rating of any debt securities of the Corporation or the Guarantor brought by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); court or (v) any amendment to the lawsgovernmental agency or body in Bermuda, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have result in a material adverse effect on Material Adverse Effect, or which could reasonably be expected to materially and adversely affect the properties or assets thereof or the consummation of the transactions contemplated by this Agreement or the performance by Sea Containers of its obligations hereunder. (ix) The information in the Prospectus under the captions "Risk Factors -- Other Risk Factors -- We cannot assure you that a judgment of a United States court for liabilities under U.S. securities laws would be enforceable in Bermuda, or that an original action can be brought in Bermuda against Sea Containers for liabilities under U.S. securities laws," "Risk Factors -- Other Risks -- Sea Containers' directors and officers may control the outcome of most matters submitted to a vote and of its shareholders," "Risk Factors -- Other Risks -- Provisions in Sea Containers' charter documents may discourage potential acquisitions of Sea Containers, even those which the holders of a majority of its class A common shares might favor," and "Description of Common Shares," to the Notesextent such information constitutes matters of Bermuda law, which is accurate in all material respects. (x) The execution and delivery by Sea Containers of this Agreement [and the Terms Agreement], the performance by Sea Containers of, or its compliance with, its obligations under this Agreement [and the Terms Agreement], and the consummation of the transactions contemplated herein and the Terms Agreement or in the case Registration Statements, including the sale and delivery by Sea Containers of the Shares, the Rights and the Preferred Shares issuable upon the exercise of such Rights (assuming such Preferred Shares were issued on the date of such opinion), do not and will not result in a breach or violation of any of the events described in clauses (i) through (iv) aboveterms or provisions of, individually or constitute a default under, or result in the aggregatecreation or imposition of any lien, charge or encumbrance upon any property or assets of Sea Containers under (A) any indenture, mortgage, deed of trust, loan agreement or any other agreement or instrument which is described or referred to in the sole judgment of the Manager, makes it impracticable or inadvisable to proceed with the consummation of the purchase of Notes by the Underwriters for sale to others on the terms and in the manner contemplated in the Time of Sale Prospectus and the Prospectus, each or is filed or incorporated by reference as then amended an exhibit to the Registration Statements, and to which Sea Containers, Orient-Express Hotels Ltd., Sea Containers SPC Ltd.or Contender 2 Ltd. is a party or supplemented. (d) At the Time of Delivery, the Underwriters shall have been furnished with such documents and opinions as by which they may reasonably require in order are bound or to evidence the accuracy and completeness of which any of the representations and warrantiestheir property or assets is subject, except for such breaches, violations, defaults, liens, charges or the fulfillment of any of the conditionsencumbrances, herein contained; and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition specified in this Section 6 shall if any, that would not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Manager by notice to the Corporation at any time at or prior to the Time of Delivery and such termination shall be without liability of any party to any other party, except that the provisions of Section 5 hereof, the indemnity and contribution agreements set forth in Section 7 and 8 hereof, and the provisions of Section 10, 13 and 16 hereof shall remain in effect.a Material Adverse Effect),

Appears in 1 contract

Samples: Sales Agreement (Sea Containers LTD /Ny/)

Conditions of Obligations. The Your several obligations of each Underwriter hereunder to ------------------------- solicit offers to purchase the Notes Offered Securities as Agent(s) and your obligations to be delivered at the Time of Delivery purchase Offered Securities pursuant to any Terms Agreement or otherwise will be subject to the accuracy of the representations and warranties on the part of the Corporation and the Guarantor herein contained as of the date hereof and as of the Time of DeliveryCompany herein, to the accuracy of the statements of any duly authorized officer or official of the Corporation and the Guarantor Company's officers made in any each certificate furnished pursuant to the provisions of Section 6(b)(1)hereof, to the performance and observance by the Corporation and the Guarantor Company of all their respective covenants and other obligations hereunder agreements herein contained on its part to be performed and observed and to the following further conditionsadditional conditions precedent: (1a) No stop At the date hereof and at each Closing Time no stop-order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under and no proceedings -13- for that purpose shall have been instituted or, to your knowledge or the Act knowledge of the Company, threatened or proceedings therefor initiated or threatened contemplated by the Commission; . (2b) no Underwriter At the date hereof and at each Closing Time if called for by the applicable Terms Agreement, each of you (or, with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) shall have been advised by received an opinion, dated, as applicable, either the Corporation that date hereof or such Closing Time, of Piper & Marbury L.L.P., or other counsel for the Registration StatementCompany acceptable to the Agents (or in the case of any Closing Time other than the date hereof, the Time opinion of Sale Prospectus the General Counsel or Assistant General Counsel of the ProspectusCompany), or any amendment or supplement thereto, at substantially identical to the time it was required to be proposed form of their opinion heretofore delivered to a purchaser each of you. (i) At the Notes, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing date hereof and at such time, not misleading; and (3) each Closing Time subsequent to the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus Statement and the Prospectus, there shall not have been any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor Prospectus (except as set forth in or contemplated by the Time of Sale Prospectus or Registration Statement and the Prospectus;), the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions not in the ordinary course of business, nor shall there have been any material decrease in the stockholders' equity or any material increase in the long-term debt of the Company or any material adverse change in the condition, financial or otherwise, or in the earnings, affairs or business prospects of the Company, whether or not arising in the ordinary course of business. (bii) At the date hereof and at each Closing Time if called for by the applicable Terms Agreement, each of Delivery the Manager you (or, with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) shall have received: (1) A certificate received a certificate, dated, as applicable, the date hereof or certificates, dated as of such timeClosing Time, signed by the Chief Executive officers of the Corporation Company specified in respect Section 4(g), certifying that, to the best of their knowledge after reasonable investigation, the Corporation statements made in the immediately preceding paragraph (i) are accurate and by to the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state effect that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that (A) no stop stop- order suspending the effectiveness of the Registration Statement or any part thereof has been issued issued, and no proceedings for that purpose have been instituted or are contemplated by the Commission and thator, subsequent to the respective dates as knowledge of which information is given in the Registration Statementsuch officers, the Prospectus and, if applicable, the Time of Sale Prospectus with respect to the Notes, there has been no material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in are threatened or contemplated by the Time of Sale Prospectus or the Prospectus; (2) An opinionCommission, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion, with respect to the Corporation being duly constituted, the validity of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their opinion, Xxxxxxxx & Xxxxxxxx may rely on the opinions of the Mallesons Xxxxxxx Xxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by New South Wales and Australian law; (4) An opinion and negative assurance letter, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to such matters as the Manager receiving such opinion may reasonably request, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters; and (5) From the Auditor General of the State of New South Wales, or any successor independent auditor, a letter, dated as of such time, and delivered at such time, substantially in the form attached hereto as Annex A. (c) 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 or the Australian Stock Exchange; (ii) a general moratorium on commercial banking activities (A) in New York declared by either U.S. federal or New York State regulatory authorities or (B) the Registration Statement and the Prospectus conform in Australia declared by all material respects to the Australian regulatory authorities or a material disruption in commercial banking or securities settlement or clearance systems in the United States or Australia; (iii) any outbreak or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any declaration of a national emergency or war by either of such countries, or any other calamity or crisis or materially adverse change in general economic, political or financial conditions having an effect on the U.S. or Australian financial markets; (iv) any downgrading in the rating of any debt securities requirements of the Corporation or Act, the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse effect on the holders of the Notes, which in the case of any of the events described in clauses (i) through (iv) above, individually or in the aggregate, in the sole judgment of the Manager, makes it impracticable or inadvisable to proceed with the consummation of the purchase of Notes by the Underwriters for sale to others on the terms and in the manner contemplated in the Time of Sale Prospectus Trust Indenture Act and the Prospectus, each as then amended or supplemented. (d) At the Time of Delivery, the Underwriters shall have been furnished with such documents Rules and opinions as they may reasonably require in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Manager by notice to the Corporation at any time at or prior to the Time of Delivery and such termination shall be without liability of any party to any other party, except that the provisions of Section 5 hereof, the indemnity and contribution agreements set forth in Section 7 and 8 hereof, and the provisions of Section 10, 13 and 16 hereof shall remain in effect.Regulations,

Appears in 1 contract

Samples: Distribution Agreement (PHH Corp)

Conditions of Obligations. The Your several obligations of each Underwriter hereunder to solicit offers to purchase the Notes Offered Securities as Agent(s) and your obligations to be delivered at the Time of Delivery purchase Offered Securities pursuant to any Terms Agreement or otherwise will be subject to the accuracy of the representations and warranties on the part of the Corporation and the Guarantor herein contained as of the date hereof and as of the Time of DeliveryCompany herein, to the accuracy of the statements of any duly authorized officer or official of the Corporation and the Guarantor Company's officers made in any each certificate furnished pursuant to the provisions of Section 6(b)(1)hereof, to the performance and observance by the Corporation and the Guarantor Company of all their respective covenants and other obligations hereunder agreements herein contained on its part to be performed and observed and to the following further conditionsadditional conditions precedent: (1a) No stop At and subsequent to the date hereof and at each Closing Time no stop-order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under and remain outstanding and no proceedings for that purpose shall have been instituted or, to your knowledge or the Act knowledge of the Company, threatened or proceedings therefor initiated or threatened contemplated by the Commission; . (2b) At the date hereof and at each Closing Time if called for by the applicable Terms Agreement, each of you (or, with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) shall have received an opinion or opinions, dated, as applicable, either the date hereof or such Closing Time, of one or more counsels for the Company acceptable to the Agents (it being understood that the opinion of the General Counsel and/or Senior Vice President, Legal of the Company shall be acceptable to the Agents unless otherwise provided in the Terms Agreement), substantially identical to the proposed form of their opinions heretofore delivered to each of you. (i) At the date hereof and at each Closing Time, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus (except as set forth in or contemplated by the Registration Statement and the Prospectus), the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions not in the ordinary course of business, nor shall there have been any material decrease in the stockholders' equity or any material increase in the long-term debt of the Company or any material adverse change in the condition, financial or otherwise, or in the earnings, affairs or business prospects of the Company, whether or not arising in the ordinary course of business. (ii) At the date hereof and at each Closing Time if called for by the applicable Terms Agreement, each of you (or, with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) shall have received a certificate, dated, as applicable, the date hereof or such Closing Time, signed by the officers of the Company specified in Section 4(g), certifying that, to the best of their knowledge after reasonable investigation, the statements made in the immediately preceding paragraph (i) are accurate and to the effect that (A) no Underwriter stop-order suspending the effectiveness of the Registration Statement has been issued, and no proceedings for that purpose have been instituted or, to the knowledge of such officers, are threatened or contemplated by the Commission, (B) the Registration Statement and the Prospectus conform in all material respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations, (C) neither the Registration Statement nor the Prospectus contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the foregoing does not apply to (i) statements or omissions in the Registration Statement or the Prospectus made in reliance upon information furnished in writing to the Company by any of you or on your behalf or on behalf of any of the Trustees expressly for use therein or (ii) that part of the Registration Statement that constitutes the Statement of Eligibility under the Trust Indenture Act on Form T-1 of any Trustee, except statements or omissions in such Statement made in reliance upon information furnished in writing to such Trustee by or on behalf of the Company for use therein, and (D) the representations and warranties of the Company included in Sections 2(a) through 2(g) are, as of the Closing Time, accurate in all material respects and the Company has performed and observed all covenants and agreements herein contained on its part to be performed and observed prior to the Closing Time. (d) At the date hereof, and at each Closing Time if called for by the applicable Terms Agreement, each of you (or, with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) shall have been advised received a letter, dated as of the Closing Time, signed by the Corporation Accountants, substantially identical to the proposed form of such letter heretofore delivered to each of you. (e) At the date hereof and at each Closing Time if called for by the applicable Terms Agreement, each of you (or with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) shall have received an opinion, dated such date, of Skadden, Arps, Slate, Xxxxxxx and Xxxx LLP, or other counsel selected by the Agents, with respect to the Company, the Offered Securities, the Registration Statement, including the form of final prospectus included therein, this Agreement and the form and sufficiency of all proceedings taken in connection with the authorization, sale and delivery of the Offered Securities, all of which shall be satisfactory in all respects to you, and the Company shall have furnished to your counsel such documents as such counsel may reasonably request for the purpose of enabling them to render such opinion. (f) At the date hereof and at each Closing Time if called for by the applicable Terms Agreement, the Company shall have furnished to each of Sale Prospectus or the Prospectusyou (or, with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) such further information and documents as you may have reasonably requested. (g) There shall not have occurred any change, or any amendment development involving a prospective change, involving currency exchange rates, exchange controls, taxation or supplement theretosimilar matters that in your respective judgments makes it impracticable or inadvisable to proceed with your solicitation of offers to purchase the Offered Securities denominated in the affected currency or currencies, or your purchase of such Offered Securities from the Company as principal; provided, however, that any such change or development shall not affect your respective obligations with respect to Offered Securities denominated in any currency not so affected. Your respective obligations to purchase Offered Securities pursuant to any Terms Agreement (or as contemplated by the last sentence of Section 3(b) hereof) will be subject to the following further conditions: (a) the rating assigned by any nationally recognized securities rating agency to any debt securities of the Company as of the date of the applicable Terms Agreement shall not have been lowered since that date nor shall any such organization have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any debt securities of the Company and (b) there shall not have come to your attention any facts that would cause you to believe that the Prospectus, at the time it was required to be delivered to a purchaser of the NotesOffered Securities, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading; and (3) subsequent to the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there shall not have been any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (b) At the Time of Delivery the Manager shall have received: (1) A certificate or certificates, dated as of such time, signed by the Chief Executive of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that 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 and that, subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus and, if applicable, the Time of Sale Prospectus with respect to the Notes, there has been no material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (2) An opinion, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion, with respect to the Corporation being duly constituted, the validity of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their opinion, Xxxxxxxx & Xxxxxxxx may rely on the opinions of the Mallesons Xxxxxxx Xxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by New South Wales and Australian law; (4) An opinion and negative assurance letter, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to such matters as the Manager receiving such opinion may reasonably request, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters; and (5) From the Auditor General of the State of New South Wales, or any successor independent auditor, a letter, dated as of such time, and delivered at such time, substantially in the form attached hereto as Annex A. (c) 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 or the Australian Stock Exchange; (ii) a general moratorium on commercial banking activities (A) in New York declared by either U.S. federal or New York State regulatory authorities or (B) in Australia declared by the Australian regulatory authorities or a material disruption in commercial banking or securities settlement or clearance systems in the United States or Australia; (iii) any outbreak or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any declaration of a national emergency or war by either of such countries, or any other calamity or crisis or materially adverse change in general economic, political or financial conditions having an effect on the U.S. or Australian financial markets; (iv) any downgrading in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse effect on the holders of the Notes, which in the case of any of the events described in clauses (i) through (iv) above, individually or in the aggregate, in the sole judgment of the Manager, makes it impracticable or inadvisable to proceed with the consummation of the purchase of Notes by the Underwriters for sale to others on the terms and in the manner contemplated in the Time of Sale Prospectus and the Prospectus, each as then amended or supplemented. (d) At the Time of Delivery, the Underwriters shall have been furnished with such documents and opinions as they may reasonably require in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Manager by notice to the Corporation at any time at or prior to the Time of Delivery and such termination shall be without liability of any party to any other party, except that the provisions of Section 5 hereof, the indemnity and contribution agreements set forth in Section 7 and 8 hereof, and the provisions of Section 10, 13 and 16 hereof shall remain in effect.

Appears in 1 contract

Samples: Distribution Agreement (PHH Corp)

Conditions of Obligations. The obligations obligation of each Underwriter hereunder the Agents, as agents of the Company, under this Agreement to solicit offers to purchase the Notes, as well as the obligation of any Agent to purchase Notes pursuant to be delivered at the Time of Delivery will be any Purchase Agreement, is subject to the accuracy in all material respects, on each Representation Date, of the representations and warranties on the part of the Corporation and the Guarantor herein Company contained as of the date hereof and as of the Time of Deliveryherein, to the accuracy of the statements of any duly authorized officer or official of the Corporation and the Guarantor Company's officers made in any certificate furnished pursuant to the provisions of Section 6(b)(1)hereof, to the performance and observance by the Corporation and the Guarantor Company in all material respects of all their respective covenants and other obligations hereunder agreements contained herein and to the following further additional conditions: (1a) No stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under the Act or proceedings therefor and no proceeding for that purpose shall have been initiated or threatened by the Commission; (2) no Underwriter , nor any order directed to any document incorporated by reference in any Prospectus shall have been advised initiated or threatened by the Corporation Commission. (b) On the Closing Date, the Agents shall have received the opinion, dated as of such date, of Stepxxx X. Xxxxx, Xxnior Vice President, Secretary and General Counsel of the Company, in form and substance reasonably satisfactory to the Agents and their counsel, 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 Delaware; (ii) The Company has the corporate power and authority necessary to own, lease and operate its properties and conduct its business as described in the Registration Statement; (iii) To the best of his knowledge, the Company is duly qualified to do business and in good standing as a foreign corporation in each jurisdiction in which its conduct of business or its ownership or leasing of properties requires such qualification and in which the failure to be so qualified would have a material adverse effect on the Company and its Subsidiaries taken as a whole; (iv) All of the issued and outstanding capital stock of each Subsidiary has been duly authorized and validly issued and is fully paid and non-assessable, and, except as described in the Registration Statement, all of such capital stock is owned by the Company, directly or through Subsidiaries, free and clear of any mortgage, pledge, lien, claim or encumbrance; (v) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus and the shares of the Company's issued and outstanding common stock, $1.00 par value, set forth therein are owned, directly or indirectly, by Great Western; (vi) Such counsel does not know of any material litigation or any governmental proceeding pending or threatened against the Company or any of its Subsidiaries required to be disclosed in the Prospectus which is not disclosed; (vii) Such counsel does not know of any contracts or other documents which are required to be filed as exhibits to the Registration Statement by the Act or by the Rules and Regulations, or which are required to be filed by the Exchange Act or the rules and regulations of the Commission thereunder as exhibits to any document incorporated by reference in the Prospectus, which have not been filed as exhibits to the Registration Statement or to such document, or incorporated therein by reference as permitted by the Rules and Regulations or the rules and regulations of the Commission under the Exchange Act, as the case may be; (viii) To the best of such counsel's knowledge, the Company is not in violation of its corporate charter or by-laws, none of the Subsidiaries are in violation of their corporate charters or by-laws, and neither the Company nor any of the Subsidiaries are in default in the observance or performance of any agreement, indenture or instrument, the effect of which violation or default would be material to the Company and the Subsidiaries taken as a whole; and (ix) To the best of his knowledge, the execution, delivery and performance of this Agreement and the applicable Purchase Agreement, if any, and compliance by the Company with the provisions of the Notes and the Indenture will not (c) On the Closing Date, the Agents shall have received the opinion, dated as of such date, of Winthrop, Stimson, Putnxx & Xobexxx, xxunsel to the Company, in form and substance reasonably satisfactory to the Agents and their counsel, to the effect that: (i) This Agreement and the Purchase Agreement, if any, have been duly authorized, executed and delivered by the Company; (ii) The Indenture has been duly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, except as may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws relating to or affecting creditors' rights generally, by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law) and by an implied covenant of good faith and fair dealing; (iii) The Notes are in a form contemplated by the Indenture and approved by the board of directors of the Company and have been duly authorized by all necessary corporate action and, when executed and authenticated as specified in the Indenture and delivered against payment therefor in accordance with this Agreement and any related Purchase Agreement, will be valid and binding obligations of the Company, enforceable in accordance with their terms, except as may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other laws relating to or affecting creditors' rights generally, by general equity principles (regardless of whether enforceability is considered in a proceeding in equity or at law) and by an implied covenant of good faith and fair dealing; (iv) The Notes and the Indenture conform in all material respects to the statements concerning them in the Registration Statement and the Prospectus; (v) The Indenture is qualified under, and complies as to form in all material respects with, the Trust Indenture Act; (vi) The Registration Statement is effective under the Act; no stop order suspending its effectiveness has been issued, and, to the knowledge of such counsel, no (vii) The Registration Statement, as of the time it became effective, and the Prospectus, as of its issue date (except that, in each case, no opinion need be expressed as to the financial statements and schedules and other financial and statistical data contained or incorporated by reference therein), complied as to form in all material respects with the requirements of the Act and the Trust Indenture Act and the rules and regulations of the Commission under said Acts, and the documents incorporated by reference in the Prospectus, when filed with the Commission (except that no opinion need be expressed as to the financial statements and schedules and other financial and statistical data contained or incorporated by reference therein), complied as to form in all material respects with the applicable requirements of the Exchange Act and the rules and regulations of the Commission thereunder; and (except that no opinion need be expressed as to the financial statements and schedules and other financial and statistical data contained or incorporated by reference therein) nothing has come to the attention of such counsel to lead them to believe that the Registration Statement, as of the Time time it became effective, contained an untrue statement of Sale Prospectus 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, or any amendment or supplement thereto, at the time it was required to be delivered to a purchaser as of the NotesRepresentation Date, contained an any 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 existing at such timeunder which they were made, not misleading; . (d) All corporate proceedings and (3) subsequent other legal matters incident to the respective dates as authorization and validity of which information is given in the Registration Statementthis Agreement and any related Purchase Agreements, the Time of Sale Prospectus and Notes, the ProspectusIndenture, there shall not have been any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (b) At the Time of Delivery the Manager shall have received: (1) A certificate or certificates, dated as of such time, signed by the Chief Executive of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that 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 and that, subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus andand any supplement, if applicableamendment or incorporated document, the Time of Sale Prospectus with respect other than financial statements and other financial data, and all other legal matters and transactions contemplated by this Agreement and any related Purchase Agreement shall be reasonably satisfactory in all material respects to Simpxxx Xxxxxxx & Xartxxxx, xxunsel to the Notes, there has been no material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (2) An opinion, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion, with respect to the Corporation being duly constituted, the validity of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require with respect to matters governed by New South Wales and Australian lawAgents, and the Corporation and the Guarantor Company shall have furnished to such counsel such all documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as information that they may require, and the Corporation and the Guarantor shall have furnished reasonably request to such counsel such documents as they request for the purpose of enabling enable them to pass upon such matters; in giving their opinion, Xxxxxxxx & Xxxxxxxx may rely on the opinions of the Mallesons Xxxxxxx Xxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by New South Wales and Australian law;. (4i) An opinion and negative assurance letter, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to Neither the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to such matters as the Manager receiving such opinion may reasonably request, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters; and (5) From the Auditor General of the State of New South Wales, or any successor independent auditor, a letter, dated as of such time, and delivered at such time, substantially in the form attached hereto as Annex A. (c) There shall not have occurred Company nor any of the following: Subsidiaries shall be in default (inor shall an event have occurred which, with notice or lapse of time, or both, would constitute a default) a suspension or material limitation in trading in securities generally on under any provision of any instrument relating to any outstanding indebtedness of the New York Stock Exchange or the Australian Stock Exchange; (ii) a general moratorium on commercial banking activities (A) in New York declared by either U.S. federal or New York State regulatory authorities or (B) in Australia declared by the Australian regulatory authorities or a material disruption in commercial banking or securities settlement or clearance systems in the United States or Australia; (iii) any outbreak or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved Company or any declaration of a national emergency or war by either of such countries, or any other calamity or crisis or materially adverse change in general economic, political or financial conditions having an effect on the U.S. or Australian financial markets; (iv) any downgrading in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” Subsidiaries (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to except where such default would not have a material adverse effect on the holders Company and its Subsidiaries taken as a whole) and (ii) no material amount of the Notesassets of the Company or of the Company and its Subsidiaries taken as a whole shall have been pledged or mortgaged, which except as referred to in the case of any of the events described in clauses (i) through (iv) above, individually or in the aggregate, in the sole judgment of the Manager, makes it impracticable or inadvisable to proceed with the consummation of the purchase of Notes by the Underwriters for sale to others on the terms Registration Statement and in the manner contemplated in the Time of Sale Prospectus and the Prospectus, each as then amended or supplemented. (df) At On the Time Closing Date the Agents shall have received a certificate of Deliverythe President, the Underwriters shall have been furnished with such documents and opinions as they may reasonably require in order to evidence Chief Financial Officer or the accuracy and completeness of any Treasurer of the representations Company to the effect that: (i) The representations, warranties and warranties, or the fulfillment of any agreements of the conditions, herein contained; Company in Section 1 hereof are true and correct in all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale material respects as of the Notes as Closing Date; the Company has complied in all material respects with all its agreements contained herein contemplated shall be satisfactory and satisfied in form and substance to the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required all material respects all conditions on its part to be fulfilled, this Agreement may be terminated by the Manager by notice to the Corporation at any time performed and satisfied at or prior to the Time date of Delivery and such termination shall be without liability of any party to any other party, certificate (except that no certificate need be given in respect of the provisions of Section 5 hereof, conditions set forth in Sections 5(d) and 5(g) herein); and the indemnity and contribution agreements conditions set forth in Section 7 5(a) hereof which are to be fulfilled at or prior to the date of such certificate have been fulfilled in all material respects; and (ii) He has reviewed the Registration Statement and 8 hereofthe Prospectus and, in his opinion, (A) the Registration Statement, as of the time it became effective, did 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 not misleading, (B) the Prospectus does not contain an untrue statement of a 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, and (C) since the provisions time the Registration Statement became effective there has not occurred any event required to be set forth in an amended or supplemented prospectus which has not been so set forth. (g) On the Closing Date the Agents shall have received a letter addressed to them and in form and substance reasonably satisfactory to them in all respects from Price Waterhouse LLP, dated as of such date, of the type described in the American Institute of Certified Public Accountants' Statement on Auditing Standards No. 72 and covering such specified financial statement items and procedures as the Agents may reasonably request. (h) No order suspending the sale of the Notes in any jurisdiction material to the distribution of Notes as contemplated hereby and designated by the Agents pursuant to Section 10, 13 and 16 3(j) hereof shall remain have been issued or in effectexistence, and no proceeding for that purpose shall have been instituted or, to the knowledge of the Agents or the Company, shall be contemplated.

Appears in 1 contract

Samples: Agency Agreement (Aristar Inc)

Conditions of Obligations. The obligations obligation of each Underwriter hereunder the Agents, as agents of the Company, under this Agreement to solicit offers to purchase the Notes Securities, as well as the obligation of each Agent to be delivered at the Time of Delivery will be purchase Securities pursuant to any Terms Agreement or otherwise, is subject to the accuracy of the representations and warranties on the part of the Corporation and the Guarantor herein Company contained as of the date hereof and as of the Time of Deliveryherein, to the accuracy of the statements of any duly authorized officer or official of the Corporation and the Guarantor Company’s officers made in any certificate furnished pursuant to the provisions of Section 6(b)(1)hereof to the extent then relevant, to the performance and observance by the Corporation and the Guarantor Company in all material respects of all their respective covenants and other its obligations hereunder hereunder, and to each of the following further additional terms and conditions: (1a) No stop order suspending the effectiveness of the Registration Statement Statement, or any part thereof thereof, nor any order directed to any document incorporated by reference in the Prospectus or the Disclosure Package shall have been issued under the Act or proceedings therefor and no stop order proceeding shall have been initiated or threatened by the Commission; (2) Commission and no Underwriter shall have been advised challenge by the Corporation that Commission shall be pending to the accuracy or adequacy of Registration Statement, the Time of Sale Prospectus or the Prospectus, Disclosure Package or any amendment or supplement thereto, at document incorporated by reference in the time it was required to be delivered to a purchaser foregoing documents; any request of the Notes, contained an untrue statement Commission for inclusion 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 existing at such time, not misleading; and (3) subsequent to the respective dates as of which additional information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there shall not have been any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (b) At the Time of Delivery the Manager shall have received: (1) A certificate or certificates, dated as of such time, signed by the Chief Executive of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that 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 and that, subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus and, if applicableor the Disclosure Package or otherwise shall have been withdrawn or complied with; and after the date of any Terms Agreement (and prior to the Settlement Date for the Securities referred to therein) the Company shall not have filed with the Commission any amendment or supplement to the Registration Statement, the Time of Sale Prospectus with respect to the Notes, there has been no material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus;Disclosure Package (or any document incorporated by reference in the foregoing documents) without the consent of the Agent or Agents party thereto. (2b) An opinionNo order suspending the sale of the Securities in any jurisdiction designated by an Agent pursuant to Section 3(1) hereof shall have been issued, and no proceeding for that purpose shall have been initiated or threatened. (c) The Agents shall not have discovered and disclosed to the Company that the Registration Statement, the Prospectus or the Disclosure Package, each as amended or supplemented, contains an untrue statement of a fact which, in the opinion of counsel for the Agents, is material or omits to state a 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. (d) On the Closing Date, the Agents shall have received from Hunton Axxxxxx Xxxxx LLP, counsel for the Agents, such opinion and letter, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinionClosing Date, with respect to the Corporation being duly constitutedissuance and sale of the Securities, the validity of the Notes and the Guarantee of the Notes by the GuarantorIndenture, the Registration Statement, the ProspectusProspectus and the Disclosure Package, the Time of Sale Prospectus (if applicable) each as amended or supplemented, and other related matters as they the Agents may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may reasonably require, and the Corporation and the Guarantor Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their . (e) On the Closing Date, the Agents shall have received the opinion, Xxxxxxxx & Xxxxxxxx may rely on addressed to the opinions Agents and dated the Closing Date, of Rxxxxxx X. Xxxxxxx, Esq., General Counsel of the Mallesons Xxxxxxx Xxxxxx (or other counsel Company, in form and scope satisfactory to the Manager receiving such opinions) as Agents and their counsel, substantially to all matters governed by New South Wales and Australian law;the effect set forth in Exhibit D hereto. (4f) An opinion and negative assurance letterOn the Closing Date, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to Agents shall have received the Manager receiving such opinion and letter, with respect addressed to such matters as the Manager receiving such Agents and dated the Closing Date, of Hxxxx Lovells US LLP, counsel to the Company, which opinion may reasonably requestand letter shall be satisfactory in form and scope to counsel for the Agents, substantially to the effect set forth in Exhibit E-1 and the Corporation and the Guarantor Exhibit E-2 hereto. (g) The Company shall have furnished to the Agents on the Closing Date a certificate, dated the Closing Date, of its President, Chief Executive Officer, Vice President or Chief Financial Officer stating that: (i) the representations, warranties and agreements of the Company in Section 1 hereof are true and correct as of such counsel Closing Date; the Company has complied in all material respects with all its agreements contained herein; and the conditions set forth in Sections 5(a) and 5(b) hereof have been fulfilled, (ii) in his opinion, as of the effective date of the Registration Statement, the Registration Statement did not contain an untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, if the certificate is being delivered pursuant to a Terms Agreement (as hereafter defined), as of the Applicable Time, the Disclosure Package did not contain an untrue statement of a material fact and did not 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, and the Prospectus as of its date and as of the Closing Date did not contain an untrue statement of a material fact and did not 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, (iii) since the respective dates as of which information is given in the Registration Statement, the Prospectus and the Disclosure Package, as amended or supplemented, there has not been any material adverse change in the condition, financial or other, or earnings of the Company, whether or not arising from transactions in the ordinary course of business, (iv) since the effective date of the Registration Statement, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus but which has not been so set forth or incorporated by reference therein, (v) the Company has no material contingent obligations which are required to be disclosed in the Registration Statement, the Prospectus or the Disclosure Package and are not disclosed therein, (vi) no stop order suspending the effectiveness of the Registration Statement is in effect on such documents as they reasonably request Closing Date and no proceedings for the purpose issuance of enabling them such an order have been taken or to pass upon the knowledge of the Company are contemplated by the Commission on or prior to such matters; andClosing Date, (vii) there are no material legal proceedings to which the Company is a party or of which property of the Company is the subject which are required to be disclosed in the Registration Statement, the Prospectus or the Disclosure Package and are not disclosed therein and (viii) there are no material contracts to which the Company is a party which are required to be disclosed in the Registration Statement, the Prospectus or the Disclosure Package and are not disclosed therein. (5h) From KPMG LLP (or successor independent public accountants with respect to the Auditor General Company within the meaning of the State of New South WalesSecurities Act and the rules and regulations thereunder) shall have furnished to the Agents, at or any successor independent auditorprior to the Closing Date, a letter, addressed to the Agents and dated as the Closing Date, confirming that they are independent public accountants with respect to the Company within the meaning of such time, the Securities Act and delivered at such timeare in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, substantially to the effect set forth in the form attached hereto as Annex A.Exhibit F hereto. (ci) There shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities of the Company or generally on the The New York Stock Exchange or the Australian Stock Exchange; , (ii) a general banking moratorium on commercial banking activities (A) in New York declared by either U.S. federal Federal or New York State regulatory authorities state authorities, (iii) any outbreak of hostilities involving the United States, any escalation of hostilities involving the United States, any attack on the United States or any act of terrorism in which the United States is involved, (Biv) in Australia declared by the Australian regulatory authorities or a material any major disruption in commercial banking or the settlement of securities settlement or clearance systems in the United States or Australia; (iii) any outbreak other relevant jurisdiction or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any a declaration of a national emergency or war by either of the United States or (v) such countries, or any other calamity or crisis or materially a material adverse change in general economic, political or financial conditions having an domestically or internationally (or the effect of international conditions on the U.S. or Australian financial markets; (iv) any downgrading markets in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse the effect on the holders of the Notes, which conditions in the United States on international financial markets shall be such) the effect of which is, in any case of any of the events described in clauses (i) through clause (iv) above, individually or in the aggregate(v), in the sole judgment of the ManagerPurchasing Agent, makes to make it impracticable or inadvisable to proceed with the consummation solicitation of offers to purchase or the purchase or delivery of the purchase of Notes by the Underwriters for sale to others Securities on the terms and in the manner contemplated in the Time Prospectus; provided, however, that in the event that any Agent agrees to purchase Securities as a principal (whether pursuant to a Terms Agreement or otherwise) there shall not have occurred any of Sale Prospectus and the Prospectus, each as then amended or supplementedforegoing subsequent to the date of such agreement. (dj) At Prior to the Time of DeliveryClosing Date, the Underwriters Company shall have been furnished to the Agents and to Hunton Axxxxxx Xxxxx LLP, counsel to the Agents, such further certificates and documents as the Agents or counsel to the Agents may have reasonably requested prior to the Closing Date. (k) Subsequent to the execution of any Terms Agreement and prior to the Settlement Date: (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization”, as that term is defined by the Commission in Section 3(a)(62) under the Exchange Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, with such documents and opinions as they may reasonably require in order to evidence the accuracy and completeness possible negative implications, its rating of any of the representations and warranties, or the fulfillment of Company’s debt securities. If any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition conditions specified in this Section 6 5 shall not have been fulfilled when and as required to be fulfilled, this Agreement (or, at the option of any Agent, acting as principal, any applicable Terms Agreement) and all obligations of any Agent hereunder (or under any applicable Terms Agreement) may be terminated canceled by the Manager by notice any such Agent, insofar as this Agreement relates to such Agent at any time. Notice of such cancellation shall be given to the Corporation at any time at Company in writing, or prior to the Time of Delivery and such termination shall be without liability of any party to any other partyby facsimile, except that the telephone or telex confirmed in writing. The provisions of Section 5 hereofSections 3(c), the indemnity and contribution agreements set forth in Section 7 and 8 hereof3(h), and the provisions of Section 104, 13 7, 8, 9, 13, 14 and 16 hereof shall remain survive any such cancellation. All opinions, letters, evidence and certificates mentioned above or elsewhere in effectthis Agreement shall be deemed to be in compliance with the provisions hereof only if they are on the date of delivery in the form and scope reasonably satisfactory to counsel for the Agents.

Appears in 1 contract

Samples: Agency Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)

Conditions of Obligations. The obligations of each Underwriter hereunder Distributor, as agent of the Issuer, under this Agreement at any time to solicit offers to purchase the Notes and to be delivered at purchase Notes from the Time of Delivery will be Issuer as principal is subject to the accuracy accuracy, on the date hereof, on each Representation Date and on the date of each such solicitation, of the representations and warranties on the part of the Corporation and the Guarantor herein contained as of the date hereof and as of the Time of DeliveryIssuer herein, to the accuracy accuracy, on each such date, of the statements of any duly authorized officer or official of the Corporation and the Guarantor Issuer's officers made in any certificate furnished pursuant to the provisions of Section 6(b)(1)hereof, to the performance and observance performance, on or prior to each such date, by the Corporation and the Guarantor Issuer of all their respective covenants and other its obligations hereunder hereunder, and to each of the following further conditionsadditional conditions precedent: (1a) No The Prospectus, as amended or supplemented as of any Representation Date or date of such solicitation, as the case may be, shall have been filed with the Commission in accordance with the Rules and Regulations and no stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued under and no proceeding for that purpose shall have been instituted or, to the Act knowledge of the Issuer or proceedings therefor initiated or threatened any Distributor, shall be contemplated by the Commission; . (2b) no Underwriter shall have been advised by the Corporation that Neither the Registration Statement, the Time of Sale Prospectus or Statement nor the Prospectus, as amended or supplemented as of any amendment Representation Date or supplement theretodate of such solicitation, at as the time it was case may be, shall contain any untrue statement of fact which, in the opinion of any Distributor, is material or omits to state a fact which, in the opinion of any Distributor, is material and is required to be delivered to a purchaser of the Notes, contained an untrue statement of a material fact stated therein or omitted to state a material fact is necessary in order to make the statements therein, in the light of the circumstances existing at such time, therein not misleading; and . (3c) subsequent to the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there There shall not have been occurred: (i) any material adverse change in the condition, financial positionor otherwise, results of operationor in the earnings, business affairs or business prospects operations, of the Corporation Issuer and its subsidiaries, taken as a whole, from that set forth in the Prospectus; (ii) any downgrading in, or notice of any proposal to downgrade, the rating of the Issuer's debt securities by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or any public announcement that any such organization has under surveillance or review with negative implications or without indicating the direction of the possible change in the rating of the Issuer's debt securities; (iii) any suspension or limitation of trading in securities generally on or by the New York Stock Exchange, the American Stock Exchange, the National Association of Securities Dealers, Inc., the Chicago Board Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, or any setting of minimum prices for trading on any such exchange; (iv) any suspension of trading of any securities of the Issuer on any exchange; (v) any banking moratorium declared by Federal or New York authorities; or (vi) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, if the effect of any such event set forth in (i) through (vi), in the judgment of the Distributors, makes it impractical or inadvisable to proceed with solicitations of offers to purchase, or sales of, Notes. (d) With respect to any Note denominated in a currency other than U.S. dollars, more than one currency or a composite currency or any Security the principal or interest of which is indexed to such currency, currencies or composite currency, there shall not have occurred a suspension or material limitation in foreign exchange trading in such currency, currencies or composite currency by a major international bank, a general moratorium on commercial banking activities in the country or countries issuing such currency, currencies or composite currency, the outbreak or escalation of hostilities involving, the occurrence of any material adverse change in the existing financial, political or economic conditions of, or the financial declaration of war or economic prospects a national emergency by, the country or countries issuing such currency, currencies or composite currency or the imposition or proposal of exchange controls by any government authority in the country or countries issuing such currency, currencies or composite currency; (e) At the Closing Date the Distributors and, if specified in a Terms Agreement, if any, at the time of delivery of the Guarantor except Notes described in such Terms Agreement the Distributors purchasing such Notes (collectively, if more than one, the "Purchasing Distributor"), shall have received written opinions, dated the Closing Date, or such date of delivery, as the case may be, of (i) Xxxxxxx Xxxxxx, Chief Finance and Securities Counsel of the Issuer, or other counsel to the Issuer acceptable to the Distributors or the Purchasing Distributor, as the case may be, substantially in the form of Schedule I hereto and (ii) Xxxxxxxx & Xxxxxxxx, special tax counsel to the Issuer, or other tax counsel to the Issuer acceptable to the Distributors or the Purchasing Distributor, as the case may be, substantially in the form of Schedule II hereto. Provided, however, that, in the case of each such opinion delivered pursuant to a Terms Agreement, to the extent applicable to such opinion, (x) the statements contained in such opinion relating to the Registration Statement or the Prospectus shall relate to the Registration Statement or the Prospectus, as the case may be, as amended or supplemented as of the time of delivery of such Notes; (y) such opinion shall relate to the Notes being delivered on the date of such opinion; and (z) in lieu of the opinion set forth in or contemplated clause (iv) of Schedule I hereto, such opinion shall state that the Notes being delivered on the date of such opinion, when authenticated in accordance with the Indenture and delivered to and duly paid for by the Time Purchasing Distributor pursuant to this Agreement, such Notes will have been duly authorized and executed, and will be entitled to the benefits of Sale the Indenture and will be valid and binding obligations of the Issuer, enforceable in accordance with their terms, subject to the qualifications set forth as to fraudulent transfer, bankruptcy, insolvency and similar laws affecting creditors' rights generally and equitable principles of general applicability, and will conform to the description thereof contained in the Prospectus as amended or the Prospectus;supplemented at such date of delivery. (bf) At the Time Closing Date the Distributors and, if specified in a Terms Agreement, if any, at the time of Delivery delivery of the Manager Notes described in such Terms Agreement the Purchasing Distributor shall have received: (1) A certificate or certificatesreceived a certificate, dated the Closing Date or such date of delivery, as of such timethe case may be, signed by the Chief Executive of the Corporation in respect Chairman, the President, any Vice President or the Treasurer of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, Issuer in which such personsofficer, to the best of such officers' knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Corporation and the Guarantor Issuer in this Agreement are true and correctcorrect in all material respects, that (ii) the Corporation and the Guarantor have Issuer has complied in all material respects with all agreements and satisfied in all material respects all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date or such timedate of delivery, that as the case may be, (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 Commission, and that, (iv) subsequent to the respective dates as date of which information is given the most recent consolidated financial statements included in the Registration Statement, the Prospectus and, if applicable, the Time of Sale Prospectus with respect to the NotesProspectus, there has been no material adverse change on a consolidated basis in the financial positionposition of the Issuer and its subsidiaries, their results of operationoperations or cash flows, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time Prospectus or as described in such certificate. In the case of Sale each such certificate delivered pursuant to a Terms Agreement, the statements contained in such certificate relating to the Registration Statement or the Prospectus shall relate to the Registration Statement or the Prospectus;, as the case may be, as amended or supplemented as of the time of delivery of such Notes. (2g) An opinionAt the Closing Date the Distributors and, dated as if specified in a Terms Agreement, if any, at the time of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion, with respect to the Corporation being duly constituted, the validity delivery of the Notes described in such Terms Agreement the Purchasing Distributor shall have received a letter, dated the Closing Date or such date of delivery, as the case may be, of KPMG Peat Marwick LLP, confirming that they are independent public accountants within the meaning of the Act and the Guarantee applicable published Rules and Regulations thereunder and stating substantially as set forth in Schedule III hereto. In the case of each such letter delivered pursuant to a Terms Agreement, the statements contained in such letter relating to the Registration Statement or the Prospectus shall relate to the Registration Statement or the Prospectus, as the case may be, as amended or supplemented as of the time of delivery of such Notes. (h) At the Closing Date the Distributors and, if specified in a Terms Agreement, if any, at the time of delivery of the Notes by described in such Terms Agreement the GuarantorPurchasing Distributor, as the Registration Statementcase may be, shall have received from Xxxxx Xxxx & Xxxxxxxx, counsel for the ProspectusDistributors, the Time of Sale Prospectus (if applicable) and other related matters such opinion or opinions, substantially as they may require with respect to matters governed by New South Wales and Australian lawset forth in Schedule IV hereto, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require, and the Corporation and the Guarantor Issuer shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; provided, however, that in giving their opinionthe case of each such opinion delivered pursuant to a Terms Agreement, Xxxxxxxx & Xxxxxxxx may rely (i) the statements contained in such opinion relating to the Registration Statement on the opinions Prospectus shall relate to the Registration Statement or the Prospectus, as the case may be, as amended or supplemented as of the Mallesons Xxxxxxx Xxxxxx time of delivery of such Notes; (or other counsel satisfactory ii) such opinion shall relate to the Manager receiving Notes being delivered on the date of such opinionsopinion; and (iii) as in lieu of the opinion set forth in clause (ii) of Schedule IV hereto, such opinion shall state that the Notes being delivered on the date of such opinion have been duly authorized and established in conformity with the provisions of the Indenture and, when such Notes have been executed by the Issuer and authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to all matters governed and duly paid for by New South Wales the Purchasing Distributor pursuant to the Terms Agreement, they will be entitled to the benefits of the Indenture and Australian law;will be valid and binding obligations of the Issuer, enforceable in accordance with their respective terms, subject to bankruptcy, insolvency or similar laws affecting creditors' rights generally and equitable principles of general applicability. (4i) An opinion and negative assurance letter, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to such matters as the Manager receiving such opinion may reasonably request, and the Corporation and the Guarantor The Issuer shall have furnished to the Distributors or the Purchasing Distributor (as applicable) and their counsel such further certificates and documents as the Distributors or the Purchasing Distributors (as applicable) or such counsel request. The Issuer will furnish the Distributors with such conformed copies of such opinions, certificates, letters and documents as they reasonably request for the purpose of enabling them to pass upon such matters; and (5) From the Auditor General of the State of New South Wales, or any successor independent auditor, a letter, dated as of such time, and delivered at such time, substantially in the form attached hereto as Annex A. (c) 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 or the Australian Stock Exchange; (ii) a general moratorium on commercial banking activities (A) in New York declared by either U.S. federal or New York State regulatory authorities or (B) in Australia declared by the Australian regulatory authorities or a material disruption in commercial banking or securities settlement or clearance systems in the United States or Australia; (iii) any outbreak or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any declaration of a national emergency or war by either of such countries, or any other calamity or crisis or materially adverse change in general economic, political or financial conditions having an effect on the U.S. or Australian financial markets; (iv) any downgrading in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse effect on the holders of the Notes, which in the case of any of the events described in clauses (i) through (iv) above, individually or in the aggregate, in the sole judgment of the Manager, makes it impracticable or inadvisable to proceed with the consummation of the purchase of Notes by the Underwriters for sale to others on the terms and in the manner contemplated in the Time of Sale Prospectus and the Prospectus, each as then amended or supplementedrequest. (d) At the Time of Delivery, the Underwriters shall have been furnished with such documents and opinions as they may reasonably require in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Manager by notice to the Corporation at any time at or prior to the Time of Delivery and such termination shall be without liability of any party to any other party, except that the provisions of Section 5 hereof, the indemnity and contribution agreements set forth in Section 7 and 8 hereof, and the provisions of Section 10, 13 and 16 hereof shall remain in effect.

Appears in 1 contract

Samples: Distribution Agreement (Union Carbide Corp /New/)

Conditions of Obligations. The obligations of each Underwriter hereunder Agent to solicit offers to purchase the Notes as agent of the Company, the obligation of any purchaser of Notes sold through such Agent as agent and the obligations of any Agent to be delivered at the Time of Delivery purchase Notes as principal pursuant to any Terms Agreement will be subject at all times to the accuracy of the representations and warranties on the part of the Corporation Company herein and the Guarantor herein contained as of the date hereof and as of the Time of Delivery, to the accuracy of the statements of any duly authorized officer or official of the Corporation and the Guarantor Company's officers made in any certificate furnished pursuant to the provisions of Section 6(b)(1)hereof, to the performance and observance by the Corporation and the Guarantor Company of all their respective covenants and other obligations hereunder agreements herein contained on its part to be performed and observed and to the following further conditionsadditional conditions precedent: (1a) No stop order Stop Order or Material Adverse Change. (i) No Stop Order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under the 1933 Act or proceedings other applicable law, and no proceeding under the 1933 Act or the 1934 Act therefor shall have been initiated or threatened by the Commission, or, with respect to the filing of any Form 8-A under the 1934 Act, by any U.S. national securities exchange; (2) no Underwriter and all requests for additional information on the part of the Commission shall have been advised complied with or such requests shall have been otherwise satisfied; (ii) the rating assigned by the Corporation that the Registration Statement, the Time of Sale Prospectus any U.S. nationally recognized statistical rating organization to any debt securities or the Prospectus, or any amendment or supplement thereto, at the time it was required to be delivered to a purchaser preferred stock of the Notes, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light Company as of the circumstances existing at date of this Agreement shall not have been lowered between the trade date and the settlement date of any offering of Notes and no such timeagency shall have publicly announced since the execution of this Agreement that it has under surveillance or review, not misleadingwith possible negative implications, its rating of any of the debt securities or preferred stock of the Company; and (3iii) subsequent to since the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus Statement and the Final Prospectus, except as otherwise stated therein or contemplated thereby, there shall not have been any material adverse change in in, or any adverse development which materially affects, the financial positioncondition, results of operationoperations, business affairs or business prospects properties of the Corporation or Company and its subsidiaries considered as one enterprise, the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (b) At the Time of Delivery the Manager shall have received: (1) A certificate or certificates, dated as of such time, signed by the Chief Executive of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that 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 and that, subsequent to the respective dates as effect of which information is given in the Registration Statement, the Prospectus and, if applicable, the Time of Sale Prospectus with respect to the Notes, there has been no your reasonable judgment so material and adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (2) An opinion, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion, with respect to the Corporation being duly constituted, the validity of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their opinion, Xxxxxxxx & Xxxxxxxx may rely on the opinions of the Mallesons Xxxxxxx Xxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by New South Wales and Australian law; (4) An opinion and negative assurance letter, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to such matters as the Manager receiving such opinion may reasonably request, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters; and (5) From the Auditor General of the State of New South Wales, or any successor independent auditor, a letter, dated as of such time, and delivered at such time, substantially in the form attached hereto as Annex A. (c) 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 or the Australian Stock Exchange; (ii) a general moratorium on commercial banking activities (A) in New York declared by either U.S. federal or New York State regulatory authorities or (B) in Australia declared by the Australian regulatory authorities or a material disruption in commercial banking or securities settlement or clearance systems in the United States or Australia; (iii) any outbreak or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any declaration of a national emergency or war by either of such countries, or any other calamity or crisis or materially adverse change in general economic, political or financial conditions having an effect on the U.S. or Australian financial markets; (iv) any downgrading in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse effect on the holders of the Notes, which in the case of any of the events described in clauses (i) through (iv) above, individually or in the aggregate, in the sole judgment of the Manager, makes make it impracticable or inadvisable to proceed with the consummation public offering or the delivery of the purchase of Notes by the Underwriters for sale to others on the terms and in the manner contemplated in the Time of Sale Prospectus and the Final Prospectus, each as then amended or supplemented. (d) At the Time of Delivery, the Underwriters shall have been furnished with such documents and opinions as they may reasonably require in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Manager by notice to the Corporation at any time at or prior to the Time of Delivery and such termination shall be without liability of any party to any other party, except that the provisions of Section 5 hereof, the indemnity and contribution agreements set forth in Section 7 and 8 hereof, and the provisions of Section 10, 13 and 16 hereof shall remain in effect.

Appears in 1 contract

Samples: Distribution Agreement (Bear Stearns Companies Inc)

Conditions of Obligations. of the Underwriters to Purchase the Firm ------------------------------------------------------------------ Shares. The several obligations of each Underwriter hereunder the Underwriters to purchase and pay for the Notes to be delivered at the Time of Delivery will ------ Firm Shares shall be subject to the accuracy of the representations and warranties on the part of the Corporation and the Guarantor herein contained Company set forth in Section 1 hereof as of the date hereof and as of the Time of Deliveryhereof, to the accuracy of the statements of any duly authorized officer or official officers of the Corporation and the Guarantor Company made in any certificate furnished given pursuant to the provisions of Section 6(b)(1)hereof, to the performance and observance by the Corporation and the Guarantor Company of all their respective covenants and other its obligations hereunder to be performed at or prior to the Time of Delivery, and to the following further additional conditions: (1i) No stop order suspending the effectiveness of the Registration Statement shall be in effect at the Time of Delivery and no order of the Commission directed to the adequacy or accuracy of any part thereof document incorporated by reference in the Prospectus shall be in effect at such date; no proceedings for any such purpose shall be pending before, or threatened by, the Commission at the Time of Delivery; if the Completed Prospectus is required to be filed with the Commission pursuant to Rule 424(b) of the Regulations, the Completed Prospectus shall have been issued under filed in the Act manner and within the time period required by Rule 424(b) of the Regulations and the Company shall have provided evidence reasonably satisfactory to the Representatives thereof; and the Representatives shall have received a certificate dated the Time of Delivery and signed by an executive officer of the Company to the effect that no such order is in effect and that no proceedings for any such purpose are pending before, or proceedings therefor initiated or to the knowledge of the Company threatened by by, the Commission; (2ii) no Underwriter there shall not have been advised by any change in the Corporation that matters described in the Registration Statement, letter furnished pursuant to Section 6(d) hereof the Time effect of Sale Prospectus or the Prospectus, or any amendment or supplement thereto, at the time it was required to be delivered to a purchaser of the Notes, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements thereinwhich would, in the light opinion of the circumstances existing at such timeRepresentatives, materially and adversely affect the market for the Firm Shares; (iii) there shall not misleading; and (3) subsequent to have been, since the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus Statement and the ProspectusProspectus (or any amendment or supplement thereto), there shall not have been except as may otherwise be stated in the Registration Statement and the Prospectus (or any amendment or supplement thereto), any material adverse change in the condition, financial positionor otherwise, results of operationor in the earnings, business affairs or business prospects of the Corporation Company and its subsidiaries taken as a whole; and (iv) the Company and its subsidiaries shall not have any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business), that are material to the Company and its subsidiaries taken as a whole, other than those reflected in the Registration Statement or the financial, political Prospectus (or economic conditions any amendment or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus;supplement thereto). (b) At the Time of Delivery the Manager Delivery, there shall have received: (1) A certificate be in full force and effect an order or certificates, dated as of such time, signed by the Chief Executive orders of the Corporation in respect MPSC authorizing the issuance and sale of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that 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 and that, subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus and, if applicable, the Time of Sale Prospectus with respect to the Notes, there has been no material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (2) An opinion, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion, with respect to the Corporation being duly constituted, the validity of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their opinion, Xxxxxxxx & Xxxxxxxx may rely on the opinions of the Mallesons Xxxxxxx Xxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by New South Wales and Australian law; (4) An opinion and negative assurance letter, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to such matters as the Manager receiving such opinion may reasonably request, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters; and (5) From the Auditor General of the State of New South Wales, or any successor independent auditor, a letter, dated as of such time, and delivered at such time, substantially in the form attached hereto as Annex A. (c) 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 or the Australian Stock Exchange; (ii) a general moratorium on commercial banking activities (A) in New York declared by either U.S. federal or New York State regulatory authorities or (B) in Australia declared by the Australian regulatory authorities or a material disruption in commercial banking or securities settlement or clearance systems in the United States or Australia; (iii) any outbreak or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any declaration of a national emergency or war by either of such countries, or any other calamity or crisis or materially adverse change in general economic, political or financial conditions having an effect on the U.S. or Australian financial markets; (iv) any downgrading in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse effect on the holders of the Notes, which in the case of any of the events described in clauses (i) through (iv) above, individually or in the aggregate, in the sole judgment of the Manager, makes it impracticable or inadvisable to proceed with the consummation of the purchase of Notes by the Underwriters for sale to others Securities on the terms and conditions herein set forth, and containing no provision unacceptable to the Representatives by reason of the fact that it is materially adverse to the Company (it being understood that no order in effect on the manner contemplated in the Time of Sale Prospectus and the Prospectus, each as then amended or supplementeddate hereof contains any such unacceptable provision). (dc) At the Time of Delivery, the Representatives shall have received from Xxxxxx X. XxXxxxx, Xx., Esq., Senior Vice President--Finance and General Counsel of the Company, and Winthrop, Stimson, Xxxxxx & Xxxxxxx, counsel for the Underwriters, opinions, dated the Time of Delivery, in substantially the form and substance prescribed in Exhibits A and B, respectively, hereto. (d) At the date of this Agreement, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated the date of this Agreement, to the effect that: (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Regulations; (ii) in their opinion, the consolidated financial statements examined by them and incorporated by reference in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the Regulations and the Exchange Act and the Exchange Act Regulations; (iii) on the basis of limited procedures, not constituting an examination made in accordance with generally accepted auditing standards, including a reading of the unaudited consolidated financial information incorporated by reference in the Prospectus, the latest available interim financial statements of the Company, if any, a reading of the minute books of the shareholders and the Board of Directors of the Company since the close of the Company's most recent fiscal year through a specified date not more than five days prior to the date of such letter, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, nothing came to their attention that caused them to believe that (A) (1) any material modifications should be made to the unaudited consolidated financial statements incorporated by reference in the Prospectus for them to be in conformity with generally accepted accounting principles or (2) the unaudited consolidated financial statements incorporated by reference in the Prospectus do not comply with the applicable accounting requirements of the Act or the Exchange Act as they apply to Form 10-Q and the Regulations or the Exchange Act Regulations; (B) at the date of the latest available interim balance sheet of the Company and at a subsequent specified date not more than five days prior to the date of such letter, there has been any change in the capital stock, or any increase in the long-term debt, or any decrease in net assets, in each case of the Company and as compared with amounts shown in the balance sheet as of the date of the latest financial statements incorporated by reference in the Prospectus, except in each case for changes, increases or decreases that the Registration Statement discloses have occurred or may occur, that were occasioned by the declaration of dividends or that are described in such letter identifying the same and specifying the amount thereof (in which case such letter shall be accompanied by an explanation of the Company as to the significance thereof unless such explanation is not deemed necessary by the Representatives); or (C) for the twelve months ended as of the date of the latest available unaudited financial statements, there were any decreases, as compared with the comparable period of the preceding year, in the Company's operating revenues, net income or earnings available for common stock, except in each case for decreases that the Registration Statement discloses have occurred or may occur, that were occasioned by the declaration of dividends or that are described in such letter identifying the same and specifying the amount thereof (in which case such letter shall be accompanied by an explanation of the Company as to the significance thereof unless such explanation is not deemed necessary by the Representatives); and (iv) they have performed certain other specified procedures with respect to certain amounts and percentages set forth in the Registration Statement or in the documents incorporated by reference in the Prospectus, as have been requested by the Representatives or counsel for the Underwriters and approved by the Company, and have found them to be in agreement with the records of the Company and the computations to be arithmetically correct. (e) At the Time of Delivery, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated the Time of Delivery, to the effect that the statements set forth in the letter furnished pursuant to Section 6(d) hereof are reaffirmed, except that the specified date referred to therein shall be a date not more than five days prior to the Time of Delivery. (f) At the Time of Delivery, the Representatives shall have received a certificate, dated the Time of Delivery and signed by an executive officer of the Company, to the effect that (i) the Company's representations and warranties set forth in Section 1 hereof are true and correct at and as of the Time of Delivery with the same effect as if made at and as of the Time of Delivery; provided, however, that (A) if any post-effective amendment to the Registration Statement shall have been furnished filed subsequent to the date hereof, the Registration Statement referred to in Section 1(b) hereof shall be deemed, for the purposes of such certificate, to include such amendment and (B) if the Completed Prospectus shall have been filed with such documents and opinions as they may reasonably require in order the Commission pursuant to evidence the accuracy and completeness of any Rule 424(b) of the representations Regulations, the Prospectus referred to in Sections 1(c), (e), (f), (g) and warranties(i) hereof shall be deemed, for the purposes of such certificate, to be the Completed Prospectus, (ii) the Company shall have performed all of its obligations hereunder to be performed at or prior to the fulfillment Time of any Delivery, (iii) if the Company shall have been required to file the Completed Prospectus with the Commission pursuant to Rule 424(b) of the conditionsRegulations, herein contained; the Company shall have done so and all (iv) the order or orders described in Section 6(b) hereof shall be in full force and effect. (g) All legal proceedings to be taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated Firm Shares shall be reasonably satisfactory in form and substance to counsel for the Underwriters. (h) Subsequent to the date of this Agreement, there shall not have occurred (i) any material change in or affecting the business, properties, financial condition or results of operations of the Company and its subsidiaries taken as a whole not contemplated by the Prospectus or any amendment or supplement thereto (including the documents incorporated by reference therein at the date thereof) that, in the opinion of the Representatives, would materially and adversely affect the market for the Firm Shares or (ii) any event or development relating to or involving the Company or any officer or director of the Company that, in the opinion of the Company and its counsel or the Representatives and counsel for the Underwriters, requires the making of any addition to or change in the Prospectus or any amendment or supplement thereto in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Prospectus to reflect such event or development would, in the opinion of the Representatives, adversely affect the market for the Firm Shares. (i) The Firm Shares shall have been listed (subject to official notice of issuance) on the NYSE. (j) The NASD shall have confirmed that it has not raised any objection with respect to the fairness or reasonableness of the underwriting terms and arrangements of the offering of the Securities. If In case any condition of the conditions specified above in this Section 6 shall not have been fulfilled when and as required to be fulfilledat the Time of Delivery, this Agreement may be terminated by the Manager by Representatives upon notice thereof to the Corporation Company at any time at or prior to the Time of Delivery and Delivery. Any such termination shall be without liability of any party to any other partyparty hereunder, except as otherwise provided in Section 5 hereof and provided that the provisions of Section 5 hereofSections 1, the indemnity 5, 9 and contribution agreements set forth in Section 7 and 8 hereof, and the provisions of Section 10, 13 and 16 14 hereof shall survive such termination and remain in full force and effect.

Appears in 1 contract

Samples: Underwriting Agreement (Laclede Gas Co)

Conditions of Obligations. The Your several obligations of each Underwriter hereunder to solicit offers to purchase the Notes Offered Securities as Agent(s) and your obligations to be delivered at the Time of Delivery purchase Offered Securities pursuant to any Terms Agreement or otherwise will be subject to the accuracy of the representations and warranties on the part of the Corporation and the Guarantor herein contained as of the date hereof and as of the Time of DeliveryCompany herein, to the accuracy of the statements of any duly authorized officer or official of the Corporation and the Guarantor Company's officers made in any each certificate furnished pursuant to the provisions of Section 6(b)(1)hereof, to the performance and observance by the Corporation and the Guarantor Company of all their respective covenants and other obligations hereunder agreements herein contained on its part to be performed and observed and to the following further conditionsadditional conditions precedent: (1a) No stop At and subsequent to the date hereof and at each Closing Time no stop-order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under and remain outstanding and no proceedings for that purpose shall have been instituted or, to your knowledge or the Act knowledge of the Company, threatened or proceedings therefor initiated or threatened contemplated by the Commission; . (2b) At the date hereof and at each Closing Time if called for by the applicable Terms Agreement, each of you (or, with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) shall have received an opinion, dated, as applicable, either the date hereof or such Closing Time, of Piper & Marbury L.L.P., or other counsel for the Company acceptable to the Agents (or in the case of any Closing Time other than the date hereof, the opinion of the General Counsel or Assistant General Counsel of the Company), substantially identical to the proposed form of their opinion heretofore delivered to each of you. (i) At the date hereof and at each Closing Time, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus (except as set forth in or contemplated by the Registration Statement and the Prospectus), the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions not in the ordinary course of business, nor shall there have been any material decrease in the stockholders' equity or any material increase in the long-term debt of the Company or any material adverse change in the condition, financial or otherwise, or in the earnings, affairs or business prospects of the Company, whether or not arising in the ordinary course of business. (ii) At the date hereof and at each Closing Time if called for by the applicable Terms Agreement, each of you (or, with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) shall have received a certificate, dated, as applicable, the date hereof or such Closing Time, signed by the officers of the Company specified in Section 4(g), certifying that, to the best of their knowledge after reasonable investigation, the statements made in the immediately preceding paragraph (i) are accurate and to the effect that (A) no Underwriter stop- order suspending the effectiveness of the Registration Statement has been issued, and no proceedings for that purpose have been instituted or, to the knowledge of such officers, are threatened or contemplated by the Commission, (B) the Registration Statement and the Prospectus conform in all material respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations, (C) neither the Registration Statement nor the Prospectus contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the foregoing does not apply to (i) statements or omissions in the Registration Statement or the Prospectus made in reliance upon information furnished in writing to the Company by any of you or on your behalf or on behalf of any of the Trustees expressly for use therein or (ii) that part of the Registration Statement that constitutes the Statement of Eligibility under the Trust Indenture Act on Form T-1 of any Trustee, except statements or omissions in such Statement made in reliance upon information furnished in writing to such Trustee by or on behalf of the Company for use therein, and (D) the representations and warranties of the Company included in Sections 2(a) through 2(e) are, as of the Closing Time, accurate in all material respects and the Company has performed and observed all covenants and agreements herein contained on its part to be performed and observed prior to the Closing Time. (d) At the date hereof, and at each Closing Time if called for by the applicable Terms Agreement, each of you (or, with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) shall have been advised received a letter, dated as of the Closing Time, signed by an independent certified public accountant of national standing, substantially identical to the proposed form of such letter heretofore delivered to each of you. (e) At the date hereof and at each Closing Time if called for by the Corporation applicable Terms Agreement, each of you (or with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) shall have received an opinion, dated such date, of Milbank, Tweed, Hadley & McCloy, or other counsxx xxxxcted by the Agents, with respect to the Company, the Offered Securities, the Registration Statement, including the form of final prospectus included therein, this Agreement and the form and sufficiency of all proceedings taken in connection with the authorization, sale and delivery of the Offered Securities, all of which shall be satisfactory in all respects to you, and the Company shall have furnished to your counsel such documents as such counsel may reasonably request for the purpose of enabling them to render such opinion. (f) At the date hereof and at each Closing Time if called for by the applicable Terms Agreement, the Company shall have furnished to each of Sale Prospectus or the Prospectusyou (or, with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) such further information and documents as you may have reasonably requested. (g) There shall not have occurred any change, or any amendment development involving a prospective change, involving currency exchange rates, exchange controls, taxation or supplement theretosimilar matters that in your respective judgments makes it impracticable or inadvisable to proceed with your solicitation of offers to purchase the Offered Securities denominated in the affected currency or currencies, or your purchase of such Offered Securities from the Company as principal; provided, however, that any such change or development shall not affect your respective obligations with respect to Offered Securities denominated in any currency not so affected. Your respective obligations to purchase Offered Securities pursuant to any Terms Agreement (or as contemplated by the last sentence of Section 3(b) hereof) will be subject to the following further conditions: (a) the rating assigned by any nationally recognized securities rating agency to any debt securities of the Company as of the date of the applicable Terms Agreement shall not have been lowered since that date nor shall any such organization have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any debt securities of the Company and (b) there shall not have come to your attention any facts that would cause you to believe that the Prospectus, at the time it was required to be delivered to a purchaser of the NotesOffered Securities, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading; and (3) subsequent to the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there shall not have been any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (b) At the Time of Delivery the Manager shall have received: (1) A certificate or certificates, dated as of such time, signed by the Chief Executive of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that 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 and that, subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus and, if applicable, the Time of Sale Prospectus with respect to the Notes, there has been no material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (2) An opinion, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion, with respect to the Corporation being duly constituted, the validity of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their opinion, Xxxxxxxx & Xxxxxxxx may rely on the opinions of the Mallesons Xxxxxxx Xxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by New South Wales and Australian law; (4) An opinion and negative assurance letter, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to such matters as the Manager receiving such opinion may reasonably request, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters; and (5) From the Auditor General of the State of New South Wales, or any successor independent auditor, a letter, dated as of such time, and delivered at such time, substantially in the form attached hereto as Annex A. (c) 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 or the Australian Stock Exchange; (ii) a general moratorium on commercial banking activities (A) in New York declared by either U.S. federal or New York State regulatory authorities or (B) in Australia declared by the Australian regulatory authorities or a material disruption in commercial banking or securities settlement or clearance systems in the United States or Australia; (iii) any outbreak or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any declaration of a national emergency or war by either of such countries, or any other calamity or crisis or materially adverse change in general economic, political or financial conditions having an effect on the U.S. or Australian financial markets; (iv) any downgrading in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse effect on the holders of the Notes, which in the case of any of the events described in clauses (i) through (iv) above, individually or in the aggregate, in the sole judgment of the Manager, makes it impracticable or inadvisable to proceed with the consummation of the purchase of Notes by the Underwriters for sale to others on the terms and in the manner contemplated in the Time of Sale Prospectus and the Prospectus, each as then amended or supplemented. (d) At the Time of Delivery, the Underwriters shall have been furnished with such documents and opinions as they may reasonably require in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Manager by notice to the Corporation at any time at or prior to the Time of Delivery and such termination shall be without liability of any party to any other party, except that the provisions of Section 5 hereof, the indemnity and contribution agreements set forth in Section 7 and 8 hereof, and the provisions of Section 10, 13 and 16 hereof shall remain in effect.

Appears in 1 contract

Samples: Distribution Agreement (PHH Corp)

Conditions of Obligations. The obligations obligation of each Underwriter hereunder Agent, as agent of the Issuer, under this Agreement at any time to solicit offers to purchase the Notes to be delivered at the Time of Delivery will be Securities is subject to the accuracy of the representations and warranties accuracy, on the part of the Corporation date hereof, on each Representation Date and the Guarantor herein contained as of on the date hereof and as of the Time each such solicitation, of Delivery, to the accuracy of the statements of any duly authorized officer or official of the Corporation and the Guarantor made in any certificate furnished pursuant to the provisions of Section 6(b)(1), to the performance and observance by the Corporation and the Guarantor of all their respective covenants and other obligations hereunder and to the following further conditions: (1) No stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission; (2) no Underwriter shall have been advised by the Corporation that the Registration Statement, the Time of Sale Prospectus or the Prospectus, or any amendment or supplement thereto, at the time it was required to be delivered to a purchaser of the Notes, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading; and (3) subsequent to the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there shall not have been any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (b) At the Time of Delivery the Manager shall have received: (1) A certificate or certificates, dated as of such time, signed by the Chief Executive of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and Issuer herein, to the Guarantor in this Agreement are true and correctaccuracy, that on each such date, of the Corporation and statements of the Guarantor have complied with all agreements and satisfied all conditions Issuer's officers made pursuant to the provisions hereof, to the performance, on their part to be performed or satisfied hereunder at or prior to each such timedate, that by the Issuer of its obligations hereunder, and to each of the following additional conditions precedent: (a) The Prospectus, as amended or supplemented as of the date hereof, as of any Representation Date or date of such solicitation, as the case may be, shall have been filed with the Commission in accordance with the Rules and Regulations and no stop order suspending the effectiveness of the Registration Statement Statements 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 Issuer or any Agent, shall be contemplated by the Commission and any request of the Commission for additional information (to be included in the Registration Statements or the Prospectus) shall have been complied with to the Agent's satisfaction. (b) Neither the Registration Statements nor the Prospectus, as amended or supplemented as of the date hereof or 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 omit to state a fact which, in the opinion of any Agent, is material and is required to be stated therein or is necessary to make the statements therein not misleading, other than any statement contained in, or other matter omitted from, the Registration Statements or Prospectus in reliance upon, and in conformity with, information furnished in writing by the Agents to the Issuer expressly for use in the Registration Statements or Prospectus. (c) There shall not have occurred (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Issuer and its subsidiaries on a consolidated basis which, in the judgment of such Agent, makes it impracticable or inadvisable to proceed with the soliciting of offers to purchase the Securities as contemplated by the Registration Statements or the Prospectus, (ii) any downgrading in the rating of the Securities or any other debt securities of the Issuer by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Issuer (other than any announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating), (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Issuer on any exchange or in the over-the-counter market if, in the judgment of such Agent, any such event or any condition giving rise thereto or existing concurrently therewith makes it impracticable or inadvisable to proceed with the solicitation of offers to purchase, or sales of, Securities on the terms and in the manner contemplated by the applicable Pricing Supplement and the Prospectus, (iv) any banking moratorium declared by Federal or New York authorities, (v) the occurrence of any material disruption in the settlement or clearing services shall have occurred, or (vi) any outbreak or escalation of hostilities, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of such Agent, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with solicitations of offers to purchase, or sales of, Securities on the terms and in the manner contemplated by the applicable Pricing Supplement and the Prospectus. (d) At the Closing Date, the Agents shall have received an opinion, dated the Closing Date, of Nelson, Mullins, Xxxxx & Scarborough, L.L.P., counsel for the Issuer, to the effect that: (i) The Issuer and each of its Subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own its properties and conduct its business as described in the Prospectus, 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 and wherein it owns or leases material properties or conducts material business; and all of the outstanding shares of capital stock of each Subsidiary have been duly authorized and validly issued and are fully paid and non-assessable, and, except as otherwise set forth in the Prospectus, all outstanding shares of capital stock of the Subsidiaries are owned by the Issuer either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the best knowledge of such counsel, any other security interest, claim, lien or encumbrance; (ii) The Indenture has been duly authorized, executed and delivered by the Issuer, has been duly qualified under the Trust Indenture Act and constitutes a valid and legally binding obligation of the Issuer enforceable in accordance with its terms, subject, as to enforcement, to applicable bankruptcy, insolvency, moratorium, fraudulent conveyance, reorganization, arrangement or other similar laws now or hereafter in effect affecting the rights of creditors generally and general principles of equity and rules of law governing and limiting the availability of specific performance, injunctive relief and other equitable remedies (regardless of whether such enforceability is considered in a proceeding in equity or at law); (iii) The documents incorporated by reference in the Prospectus (other than the financial statements and supporting schedules included therein or omitted therefrom, as to which such counsel expresses no opinion), when they were filed with the Commission complied as to form in all material respects with the requirements of the 1934 Act and the rules and regulations of the Commission thereunder. (iv) Any series of Securities established on or prior to the date of such opinion has been duly authorized and established in conformity with the Indenture, the Master Note has been duly executed by the Company and, when the terms of a particular Security and of its issuance and sale have been duly authorized and established by all necessary corporate action in conformity with the Indenture and this Agreement, and communicated to the Trustee as provided in the Officer's Certificate delivered pursuant to Section 2.01 and 2.04 of the Indenture, and such Security delivered against payment as contemplated by this Agreement, such Security will have been duly issued and will constitute a valid and legally binding obligation of the Issuer enforceable in accordance with its terms, subject, as to enforcement, to applicable bankruptcy, insolvency, moratorium, fraudulent conveyance, reorganization, arrangement or other similar laws now or hereafter in effect affecting the rights of creditors generally and general principles of equity and rules of law governing and limiting the availability of specific performance, injunctive relief and other equitable remedies (regardless of whether such enforceability is considered in a proceeding in equity or at law), and the Securities, when so issued and delivered and sold, will conform, in all material respects, to the description thereof contained in the Prospectus, it being understood that such counsel may assume that at the time of the issuance, sale and delivery of each Security (a) the authorization of such series will not have been modified or rescinded and there will not have occurred any change in law affecting the validity, legally binding character or enforceability of such Security, and (b) that neither of the issuance, sale and delivery of any Security, nor any of the terms of such Security, nor compliance by the Issuer with such terms, will violate any then applicable law, any agreement or instrument then binding upon the Issuer or any restriction then imposed by any court or governmental body having jurisdiction over the Issuer; (v) To the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Issuer or any of its subsidiaries of a character required to be disclosed in the Registration Statements by Item 103 of Regulation S-K which is not disclosed in the Prospectus, there is no statute required to be described in the Prospectus that is not described as required, and there is no franchise, contract or other document of a character required to be described in the Registration Statements or Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the descriptions in the Registration Statements and Prospectus of statutes, legal and governmental proceedings, and other matters of law (other than (i) descriptions under the caption "Material United States Federal Income Tax Consequences" in the Prospectus and (ii) the matters covered by the opinion required by Section 5(d)(xi) herein), the Issuer's certificate of incorporation and bylaws, contracts and other documents are correct in all material respects and fairly present the information required to be shown; (vi) The Registration Statements have become effective under the Act, the Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) under the Act specified in such opinion on the date specified therein, and, to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statements or of any part thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated by under the Commission Act, and that, subsequent the registration statements relating to the respective dates Registered Securities and each post-effective amendment thereto, as of which information is given their effective date, the Registration Statements and the Prospectus, as of the Closing Date, and any amendment or supplement thereto, as of its date, complied as to form in all material respects with the requirements of the Act, the Trust Indenture Act and the Rules and Regulations; such counsel has no reason to believe that the registration statements relating to the Registered Securities and each post-effective amendment thereto, as of their effective date, the Registration Statements or the Prospectus, or any amendment or supplement, as of their respective effective or issue dates and at the Closing Date, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading; it being understood that such counsel need express no opinion as to the financial statements or other financial data contained in the Registration Statement, Statements or the Prospectus and, if applicable, and that such counsel may rely solely on certificates of officers of the Time of Sale Prospectus Issuer with respect to the Notes, there has been no material adverse change statistical data contained in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus Registration Statements or the Prospectus; (2vii) An opinion, dated The Issuer's authorized equity capitalization is as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to set forth in the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion, with respect to the Corporation being duly constituted, the validity of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States lawcontained therein); (3viii) An opinion and disclosure letterNo consent, dated as of such timeapproval, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, authorization or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their opinion, Xxxxxxxx & Xxxxxxxx may rely on the opinions of the Mallesons Xxxxxxx Xxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by New South Wales and Australian law; (4) An opinion and negative assurance letter, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to such matters as the Manager receiving such opinion may reasonably request, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters; and (5) From the Auditor General of the State of New South Wales, or any successor independent auditor, a letter, dated as of such time, and delivered at such time, substantially in the form attached hereto as Annex A. (c) 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 or the Australian Stock Exchange; (ii) a general moratorium on commercial banking activities (A) in New York declared by either U.S. federal or New York State regulatory authorities or (B) in Australia declared by the Australian regulatory authorities or a material disruption in commercial banking or securities settlement or clearance systems in the United States or Australia; (iii) any outbreak or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any declaration of a national emergency or war by either of such countries, or any other calamity or crisis or materially adverse change in general economic, political or financial conditions having an effect on the U.S. or Australian financial markets; (iv) any downgrading in the rating order of any debt securities of the Corporation court or the Guarantor by any “nationally recognized statistical rating organization” (as defined governmental agency or body is required for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse effect on the holders of the Notes, which in the case of any of the events described in clauses (i) through (iv) above, individually or in the aggregate, in the sole judgment of the Manager, makes it impracticable or inadvisable to proceed with the consummation of the purchase of Notes transactions contemplated by the Underwriters for sale to others on the terms and in the manner contemplated in the Time of Sale Prospectus and the Prospectus, each as then amended or supplemented. (d) At the Time of Delivery, the Underwriters shall have been furnished with such documents and opinions as they may reasonably require in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor this Agreement in connection with the issuance and sale of the Notes Securities by the Issuer, except such as have been obtained and made under the Act and the Trust Indenture Act and as may be required under state securities laws and such other approvals (specified in such opinion) as have been obtained (it being understood that such counsel may assume with respect to each particular Security that the inclusion of any alternative or additional terms in such Security that are not currently specified in the Prospectus or the forms of Securities examined by such counsel would not require the Issuer to obtain any regulatory consent, authorization or approval or make any regulatory filing in order for the Issuer to issue, sell and deliver such Security); (ix) The execution, delivery and performance of the Indenture or this Agreement, the issue and sale of the Securities, the consummation of the other transactions herein contemplated shall or the fulfillment of the terms hereof will not conflict with, result in a breach of, or constitute a default under the Articles of Incorporation or By-laws of the Issuer or the terms of any indenture or other agreement or instrument known to such counsel and to which the Issuer or any of its subsidiaries is a party or bound, or any statute, rule, order or regulation known to such counsel to be satisfactory in form and substance applicable to the Underwriters. If Issuer or any condition of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Issuer or any of its subsidiaries; and the Issuer has full power and authority to authorize, issue and sell the Securities as contemplated by this Agreement (it being understood that such counsel may assume with respect to each particular Security that the inclusion of any alternative or additional terms in such Security that are not currently specified in the Prospectus or the forms of Securities examined by such counsel will not cause the issuance, sale or delivery of such Security, the terms of such Security, or the compliance by the Issuer with such terms, to violate any of the court orders or laws specified in this Section 6 shall not have paragraph or to result in a default under or a breach of any of the agreements specified in this paragraph); (x) This Agreement has been fulfilled when duly authorized, executed and as required to be fulfilled, this Agreement may be terminated delivered by the Manager by notice to the Corporation at any time at Issuer; (xi) The Issuer and its subsidiaries have all necessary franchises or prior to the Time of Delivery and such termination shall be without liability of any party to any other partypermits for natural gas operations in all communities now served, except that the provisions of Section 5 hereof, the indemnity and contribution agreements as set forth in Section 7 the Registration Statements and 8 hereofexcept where the failure to be so authorized by franchise or permit does not, in the opinion of such counsel, materially affect the right of the Issuer or such subsidiary to the use of its properties or the conduct of its business; and the franchises of the Issuer and its subsidiaries referred to in the Registration Statements are good and valid except for and subject only to such defects as may be set forth or referred to in the Registration Statements, and such others as do not, in the opinion of such counsel, materially affect the right of the Issuer or such subsidiary to the use of its properties or the conduct of its business, and said franchises impose no materially burdensome restrictions; and (xii) The Issuer is a "holding company" within the meaning of the Holding Company Act that is exempt from all provisions of the Holding Company Act, except Section 109(a)(2) thereof, 13 and 16 hereof shall remain in effect.by order of the Commission pursuant to Section 3(a)(5)

Appears in 1 contract

Samples: Agency Agreement (Piedmont Natural Gas Co Inc)

Conditions of Obligations. The obligations obligation of each Underwriter hereunder Agent, as agent of the Issuer, under this Agreement at any time to solicit offers to purchase the Notes to be delivered at the Time of Delivery will be Securities is subject to the accuracy of the representations and warranties accuracy, on the part of the Corporation date hereof, on each Representation Date and the Guarantor herein contained as of on the date hereof and as of the Time each such solicitation, of Delivery, to the accuracy of the statements of any duly authorized officer or official of the Corporation and the Guarantor made in any certificate furnished pursuant to the provisions of Section 6(b)(1), to the performance and observance by the Corporation and the Guarantor of all their respective covenants and other obligations hereunder and to the following further conditions: (1) No stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under the Act or proceedings therefor initiated or threatened by the Commission; (2) no Underwriter shall have been advised by the Corporation that the Registration Statement, the Time of Sale Prospectus or the Prospectus, or any amendment or supplement thereto, at the time it was required to be delivered to a purchaser of the Notes, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading; and (3) subsequent to the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there shall not have been any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (b) At the Time of Delivery the Manager shall have received: (1) A certificate or certificates, dated as of such time, signed by the Chief Executive of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and Issuer herein, to the Guarantor in this Agreement are true and correctaccuracy, that on each such date, of the Corporation and statements of the Guarantor have complied with all agreements and satisfied all conditions Issuer's officers made pursuant to the provisions hereof, to the performance, on their part to be performed or satisfied hereunder at or prior to each such timedate, that by the Issuer of its obligations hereunder, and to each of the following additional conditions precedent: (a) The Prospectus, as amended or supplemented as of any Representation Date or date of such solicitation, as the case may be, shall have been filed with the Commission in accordance with the Rules and Regulations and no stop order suspending the effectiveness of the Registration Statement Statements or of any part thereof has shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Issuer or are any Agent, shall be contemplated by the Commission Commission. (b) Neither the Registration Statements 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 omit to state a fact which, in the opinion of any Agent, is material and thatis required to be stated therein or is necessary to make the statements therein not misleading, subsequent other than any statement contained in, or other matter omitted from, the Registration Statements or Prospectus in reliance upon, and in conformity with, information furnished in writing by the Agents to the respective dates as of which information is given Issuer expressly for use in the Registration Statement, the Prospectus and, if applicable, the Time of Sale Prospectus with respect to the Notes, there has been no material adverse change in the financial position, results of operation, business affairs Statements or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (2) An opinion, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion, with respect to the Corporation being duly constituted, the validity of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their opinion, Xxxxxxxx & Xxxxxxxx may rely on the opinions of the Mallesons Xxxxxxx Xxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by New South Wales and Australian law; (4) An opinion and negative assurance letter, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to such matters as the Manager receiving such opinion may reasonably request, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters; and (5) From the Auditor General of the State of New South Wales, or any successor independent auditor, a letter, dated as of such time, and delivered at such time, substantially in the form attached hereto as Annex A.. (c) 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 or the Australian Stock Exchange; (ii) a general moratorium on commercial banking activities (A) in New York declared by either U.S. federal or New York State regulatory authorities or (B) in Australia declared by the Australian regulatory authorities or a material disruption in commercial banking or securities settlement or clearance systems in the United States or Australia; (iii) any outbreak or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any declaration of a national emergency or war by either of such countrieschange, or any other calamity development involving a prospective change, in or crisis affecting particularly the business or materially adverse change properties of the Issuer and its subsidiaries on a consolidated basis which, in general economicthe judgment of such Agent, political makes it impracticable or financial conditions having an effect on inadvisable to proceed with the U.S. soliciting of offers to purchase the Securities as contemplated by the Registration Statement or Australian financial markets; the Prospectus, (ivii) any downgrading in the rating of the Securities or any other debt securities of the Corporation or the Guarantor Issuer by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act); , or (v) any amendment to the laws, regulations public announcement that any such organization has under surveillance or published tax rulings review its rating of any debt securities of the United States or Australia which could reasonably be expected to have Issuer (other than any announcement with positive implications of a material adverse effect on the holders of the Notes, which in the case of any of the events described in clauses (i) through (iv) above, individually or in the aggregate, in the sole judgment of the Manager, makes it impracticable or inadvisable to proceed with the consummation of the purchase of Notes by the Underwriters for sale to others on the terms and in the manner contemplated in the Time of Sale Prospectus and the Prospectus, each as then amended or supplemented. (d) At the Time of Delivery, the Underwriters shall have been furnished with such documents and opinions as they may reasonably require in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Manager by notice to the Corporation at any time at or prior to the Time of Delivery and such termination shall be without liability of any party to any other party, except that the provisions of Section 5 hereof, the indemnity and contribution agreements set forth in Section 7 and 8 hereofpossible upgrading, and the provisions of Section 10, 13 and 16 hereof shall remain in effect.no

Appears in 1 contract

Samples: Agency Agreement (Piedmont Natural Gas Co Inc)

Conditions of Obligations. The Your several obligations of each Underwriter hereunder to solicit offers to purchase the Notes Offered Securities as Agent(s) and your obligations to be delivered at the Time of Delivery purchase Offered Securities pursuant to any Terms Agreement or otherwise will be subject to the accuracy of the representations and warranties on the part of the Corporation and the Guarantor herein contained as of the date hereof and as of the Time of DeliveryCompany herein, to the accuracy of the statements of any duly authorized officer or official of the Corporation and the Guarantor Com- pany's officers made in any each certificate furnished pursuant to the provisions of Section 6(b)(1)hereof, to the performance and observance by the Corporation and the Guarantor Company of all their respective covenants and other obligations hereunder agreements herein contained on its part to be performed and observed and to the following further conditionsadditional conditions precedent: (1a) No stop At and subsequent to the date hereof and at each Closing Time no stop-order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under and remain outstanding and no proceedings for that pur- pose shall have been instituted or, to your knowledge or the Act knowledge of the Company, threatened or proceedings therefor initiated or threatened contemplated by the Commission; . (2b) At the date hereof and at each Closing Time if called for by the applicable Terms Agreement, each of you (or, with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) shall have received an opinion, dated, as applicable, either the date hereof or such Closing Time, of counsel for the Company acceptable to the Agents (it being understood that the opinion of the General Counsel or Vice President, Legal of the Company shall be acceptable to the Agents unless otherwise provided in the Terms Agreement), substantially identical to the proposed form of their opinion heretofore delivered to each of you. (i) At the date hereof and at each Closing Time, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus (except as set forth in or contemplated by the Registration Statement and the Prospectus), the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions not in the ordinary course of business, nor shall there have been any material decrease in the stockholders' equity or any material increase in the long-term debt of the Company or any material adverse change in the condition, financial or otherwise, or in 15 the earnings, affairs or business prospects of the Company, whether or not arising in the ordinary course of business. (ii) At the date hereof and at each Closing Time if called for by the applicable Terms Agreement, each of you (or, with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) shall have received a certificate, dated, as applicable, the date hereof or such Closing Time, signed by the officers of the Company specified in Section 4(g), certifying that, to the best of their knowledge after reasonable investigation, the statements made in the immediately preceding paragraph (i) are accurate and to the effect that (A) no Underwriter stop-order suspending the effectiveness of the Registration Statement has been issued, and no proceedings for that purpose have been instituted or, to the knowledge of such officers, are threatened or contemplated by the Commission, (B) the Registration Statement and the Prospectus conform in all material respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regu- lations, (C) neither the Registration Statement nor the Prospectus contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the foregoing does not apply to (i) statements or omissions in the Registration Statement or the Prospectus made in reliance upon information furnished in writing to the Company by any of you or on your behalf or on behalf of any of the Trustees expressly for use therein or (ii) that part of the Registration Statement that constitutes the Statement of Eligibility under the Trust Indenture Act on Form T-1 of any Trustee, except statements or omissions in such Statement made in reliance upon information furnished in writing to such Trustee by or on behalf of the Company for use therein, and (D) the representations and warranties of the Company included in Sections 2(a) through 2(g) are, as of the Closing Time, accurate in all material respects and the Company has performed and observed all covenants and agreements herein contained on its part to be performed and observed prior to the Closing Time. (d) At the date hereof, and at each Closing Time if called for by the applicable Terms Agreement, each of you (or, with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) shall have been advised received a letter, dated as of the Closing Time, signed by the Corporation Accountants, substantially identical to the proposed form of such letter heretofore delivered to each of you. (e) At the date hereof and at each Closing Time if called for by the applicable Terms Agreement, each of you (or with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) shall have received an opinion, dated such date, of Skadden, Arps, Slate, Meagher and Flom LLP, or other counsel selected by the Agents, with respxxx xx the Cxxxxny, the Offered Securities, the Registration Statement, including the form of final prospectus included therein, this Agreement and the form and sufficiency of all proceedings taken in connection with the authorization, sale and delivery of the Offered Securities, all of which shall be satisfactory in all respects to you, and the Company shall have furnished to your counsel such documents as such counsel may reasonably request for the purpose of enabling them to render such opinion. (f) At the date hereof and at each Closing Time if called for by the applicable Terms Agreement, the Company shall have furnished to each of Sale Prospectus or the Prospectusyou (or, with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) such further information and documents as you may have reasonably requested. (g) There shall not have occurred any change, or any amendment development involving a prospective change, involving currency exchange rates, exchange controls, taxation or supplement theretosimilar matters that in your respective judgments makes it impracticable or inadvisable to proceed with your solicitation of offers to purchase the Offered Securities denominated in the affected currency or currencies, or your purchase of such Offered Securities from the Company as principal; provided, however, that any such change or development shall not affect your respective obligations with respect to Offered Securities denominated in any currency not so affected. Your respective obligations to purchase Offered Securities pursuant to any Terms Agreement (or as contemplated by the last sentence of Section 3(b) hereof) will be subject to the following further conditions: (a) the rating assigned by any nationally recognized securities rating agency to any debt securities of the Company as of the date of the applicable Terms Agreement shall not have been lowered since that date nor shall any such organization have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any debt securities of the Company and (b) there shall not have come to your attention any facts that would cause you to believe that the Prospectus, at the time it was required to be delivered to a purchaser of the NotesOffered Securities, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading; and (3) subsequent to the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there shall not have been any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (b) At the Time of Delivery the Manager shall have received: (1) A certificate or certificates, dated as of such time, signed by the Chief Executive of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that 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 and that, subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus and, if applicable, the Time of Sale Prospectus with respect to the Notes, there has been no material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (2) An opinion, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion, with respect to the Corporation being duly constituted, the validity of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their opinion, Xxxxxxxx & Xxxxxxxx may rely on the opinions of the Mallesons Xxxxxxx Xxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by New South Wales and Australian law; (4) An opinion and negative assurance letter, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to such matters as the Manager receiving such opinion may reasonably request, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters; and (5) From the Auditor General of the State of New South Wales, or any successor independent auditor, a letter, dated as of such time, and delivered at such time, substantially in the form attached hereto as Annex A. (c) 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 or the Australian Stock Exchange; (ii) a general moratorium on commercial banking activities (A) in New York declared by either U.S. federal or New York State regulatory authorities or (B) in Australia declared by the Australian regulatory authorities or a material disruption in commercial banking or securities settlement or clearance systems in the United States or Australia; (iii) any outbreak or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any declaration of a national emergency or war by either of such countries, or any other calamity or crisis or materially adverse change in general economic, political or financial conditions having an effect on the U.S. or Australian financial markets; (iv) any downgrading in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse effect on the holders of the Notes, which in the case of any of the events described in clauses (i) through (iv) above, individually or in the aggregate, in the sole judgment of the Manager, makes it impracticable or inadvisable to proceed with the consummation of the purchase of Notes by the Underwriters for sale to others on the terms and in the manner contemplated in the Time of Sale Prospectus and the Prospectus, each as then amended or supplemented. (d) At the Time of Delivery, the Underwriters shall have been furnished with such documents and opinions as they may reasonably require in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Manager by notice to the Corporation at any time at or prior to the Time of Delivery and such termination shall be without liability of any party to any other party, except that the provisions of Section 5 hereof, the indemnity and contribution agreements set forth in Section 7 and 8 hereof, and the provisions of Section 10, 13 and 16 hereof shall remain in effect.

Appears in 1 contract

Samples: Distribution Agreement (PHH Corp)

Conditions of Obligations. of the Underwriters to Purchase the Firm ------------------------------------------------------------------ Shares. The several obligations of each Underwriter hereunder the Underwriters to purchase and pay for the Notes to be delivered at the Time of Delivery will ------ Firm Shares shall be subject to the accuracy of the representations and warranties on the part of the Corporation and the Guarantor herein contained Company set forth in Section 1 hereof as of the date hereof and as of the Time of Deliveryhereof, to the accuracy of the statements of any duly authorized officer or official officers of the Corporation and the Guarantor Company made in any certificate furnished given pursuant to the provisions of Section 6(b)(1)hereof, to the performance and observance by the Corporation and the Guarantor Company of all their respective covenants and other its obligations hereunder to be performed at or prior to the Time of Delivery, and to the following further additional conditions: (1i) No stop order suspending the effectiveness of the Registration Statement shall be in effect at the Time of Delivery and no order of the Commission directed to the adequacy or accuracy of any part thereof document incorporated by reference in the Prospectus shall be in effect at such date; no proceedings for any such purpose shall be pending before, or threatened by, the Commission at the Time of Delivery; if the Completed Prospectus is required to be filed with the Commission pursuant to Rule 424(b) of the Regulations, the Completed Prospectus shall have been issued under filed in the Act manner and within the time period required by Rule 424(b) of the Regulations and the Company shall have provided evidence reasonably satisfactory to the Representatives thereof; and the Representatives shall have received a certificate dated the Time of Delivery and signed by an executive officer of the Company to the effect that no such order is in effect and that no proceedings for any such purpose are pending before, or proceedings therefor initiated or to the knowledge of the Company threatened by by, the Commission; (2ii) no Underwriter there shall not have been advised by any change in the Corporation that matters described in the Registration Statement, letter furnished pursuant to Section 6(d) hereof the Time effect of Sale Prospectus or the Prospectus, or any amendment or supplement thereto, at the time it was required to be delivered to a purchaser of the Notes, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements thereinwhich would, in the light opinion of the circumstances existing at such timeRepresentatives, materially and adversely affect the market for the Firm Shares; (iii) there shall not misleading; and (3) subsequent to have been, since the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus Statement and the ProspectusProspectus (or any amendment or supplement thereto), there shall not have been except as may otherwise be stated in the Registration Statement and the Prospectus (or any amendment or supplement thereto), any material adverse change in the condition, financial positionor otherwise, results of operationor in the earnings, business affairs or business prospects of the Corporation Company and its subsidiaries taken as a whole; and (iv) the Company and its subsidiaries shall not have any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business), that are material to the Company and its subsidiaries taken as a whole, other than those reflected in the Registration Statement or the financial, political Prospectus (or economic conditions any amendment or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus;supplement thereto). (b) At the Time of Delivery the Manager Delivery, there shall have received: (1) A certificate or certificates, dated as of such time, signed by the Chief Executive be in full force and effect orders of the Corporation in respect MPSC authorizing the issuance and sale of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that 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 and that, subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus and, if applicable, the Time of Sale Prospectus with respect to the Notes, there has been no material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (2) An opinion, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion, with respect to the Corporation being duly constituted, the validity of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their opinion, Xxxxxxxx & Xxxxxxxx may rely on the opinions of the Mallesons Xxxxxxx Xxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by New South Wales and Australian law; (4) An opinion and negative assurance letter, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to such matters as the Manager receiving such opinion may reasonably request, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters; and (5) From the Auditor General of the State of New South Wales, or any successor independent auditor, a letter, dated as of such time, and delivered at such time, substantially in the form attached hereto as Annex A. (c) 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 or the Australian Stock Exchange; (ii) a general moratorium on commercial banking activities (A) in New York declared by either U.S. federal or New York State regulatory authorities or (B) in Australia declared by the Australian regulatory authorities or a material disruption in commercial banking or securities settlement or clearance systems in the United States or Australia; (iii) any outbreak or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any declaration of a national emergency or war by either of such countries, or any other calamity or crisis or materially adverse change in general economic, political or financial conditions having an effect on the U.S. or Australian financial markets; (iv) any downgrading in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse effect on the holders of the Notes, which in the case of any of the events described in clauses (i) through (iv) above, individually or in the aggregate, in the sole judgment of the Manager, makes it impracticable or inadvisable to proceed with the consummation of the purchase of Notes by the Underwriters for sale to others Securities on the terms and conditions herein set forth and containing no provisions unacceptable to the Representatives by reason of the fact that they are materially adverse to the Company (it being understood that the MPSC's orders in effect on the manner contemplated in the Time of Sale Prospectus and the Prospectus, each as then amended or supplementeddate hereof contain no such unacceptable provisions). (dc) At the Time of Delivery, the Representatives shall have received from Xxxxxx X. XxXxxxx, Xx., Esq., Senior Vice President--Finance and General Counsel of the Company, and Winthrop, Stimson, Xxxxxx & Xxxxxxx, counsel for the Underwriters, opinions, dated the Time of Delivery, in substantially the form and substance prescribed in Exhibits A and B, respectively, hereto. (d) At the date of this Agreement, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated the date of this Agreement, to the effect that: (i) they are independent public accountants with respect to the Company within the meaning of the Act and the Regulations; (ii) in their opinion, the consolidated financial statements examined by them and incorporated by reference in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the Regulations and the Exchange Act and the Exchange Act Regulations; (iii) on the basis of limited procedures, not constituting an examination made in accordance with generally accepted auditing standards, including a reading of the unaudited consolidated financial information incorporated by reference in the Prospectus, the latest available interim financial statements of the Company, if any, a reading of the minute books of the shareholders and the Board of Directors of the Company since the close of the Company's most recent fiscal year through a specified date not more than five days prior to the date of such letter, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, nothing came to their attention that caused them to believe that (A) (1) any material modifications should be made to the unaudited consolidated financial statements incorporated by reference in the Prospectus for them to be in conformity with generally accepted accounting principles or (2) the unaudited consolidated financial statements incorporated by reference in the Prospectus do not comply with the applicable accounting requirements of the Exchange Act as it applies to Form 10-Q and the Exchange Act Regulations; (B) at the date of the latest available interim balance sheet of the Company and at a subsequent specified date not more than five days prior to the date of such letter, there has been any change in the capital stock, or any increase in the long-term debt, or any decrease in net assets, in each case of the Company and as compared with amounts shown in the balance sheet as of the date of the latest financial statements incorporated by reference in the Prospectus, except in each case for changes, increases or decreases that the Registration Statement discloses have occurred or may occur, that were occasioned by the declaration of dividends or that are described in such letter identifying the same and specifying the amount thereof (in which case such letter shall be accompanied by an explanation of the Company as to the significance thereof unless such explanation is not deemed necessary by the Representatives); or (C) for the twelve months ended as of the date of the latest available unaudited financial statements, there were any decreases, as compared with the comparable period of the preceding year, in the Company's operating revenues, net income or earnings available for common stock, except in each case for decreases that the Registration Statement discloses have occurred or may occur, that were occasioned by the declaration of dividends or that are described in such letter identifying the same and specifying the amount thereof (in which case such letter shall be accompanied by an explanation of the Company as to the significance thereof unless such explanation is not deemed necessary by the Representatives); and (iv) they have performed certain other specified procedures with respect to certain amounts and percentages set forth in the Registration Statement or in the documents incorporated by reference in the Prospectus, as have been reasonably requested by the Representatives or counsel for the Underwriters and approved by the Company, and have found them to be in agreement with the records of the Company and the computations to be arithmetically correct. (e) At the Time of Delivery, Deloitte & Touche LLP shall have furnished to the Representatives a letter, dated the Time of Delivery, to the effect that the statements set forth in the letter furnished pursuant to Section 6(d) hereof are reaffirmed, except that the specified date referred to therein shall be a date not more than five days prior to the Time of Delivery. (f) At the Time of Delivery, the Representatives shall have received a certificate, dated the Time of Delivery and signed by an executive officer of the Company, to the effect that (i) the Company's representations and warranties set forth in Section 1 hereof are true and correct at and as of the Time of Delivery with the same effect as if made at and as of the Time of Delivery; provided, however, that (A) if any post- effective amendment to the Registration Statement shall have been furnished filed subsequent to the date hereof, the Registration Statement referred to in Section 1(b) hereof shall be deemed, for the purposes of such certificate, to include such amendment and (B) if the Completed Prospectus shall have been filed with such documents and opinions as they may reasonably require in order the Commission pursuant to evidence the accuracy and completeness of any Rule 424(b) of the representations Regulations, the Prospectus referred to in Sections 1(c), (e), (f), (g) and warranties(i) hereof shall be deemed, for the purposes of such certificate, to be the Completed Prospectus, (ii) the Company shall have performed all of its obligations hereunder to be performed at or prior to the fulfillment Time of any Delivery, (iii) if the Company shall have been required to file the Completed Prospectus with the Commission pursuant to Rule 424(b) of the conditionsRegulations, herein contained; the Company shall have done so and all (iv) the orders described in Section 6(b) hereof shall be in full force and effect. (g) All legal proceedings to be taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated Firm Shares shall be reasonably satisfactory in form and substance to counsel for the Underwriters. (h) Subsequent to the date of this Agreement, there shall not have occurred (i) any material change in or affecting the business, properties, financial condition or results of operations of the Company and its subsidiaries taken as a whole not contemplated by the Prospectus or any amendment or supplement thereto (including the documents incorporated by reference therein at the date thereof) that, in the opinion of the Representatives, would materially and adversely affect the market for the Firm Shares or (ii) any event or development relating to or involving the Company or any officer or director of the Company that, in the opinion of the Company and its counsel or the Representatives and counsel for the Underwriters, requires the making of any addition to or change in the Prospectus or any amendment or supplement thereto in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Prospectus to reflect such event or development would, in the opinion of the Representatives, adversely affect the market for the Firm Shares. (i) The Firm Shares shall have been listed (subject to official notice of issuance) on the NYSE. (j) The NASD shall have confirmed that it has not raised any objection with respect to the fairness or reasonableness of the underwriting terms and arrangements of the offering of the Securities. If In case any condition of the conditions specified above in this Section 6 shall not have been fulfilled when and as required to be fulfilledat the Time of Delivery, this Agreement may be terminated by the Manager by Representatives upon notice thereof to the Corporation Company at any time at or prior to the Time of Delivery and Delivery. Any such termination shall be without liability of any party to any other partyparty hereunder, except as otherwise provided in Section 5 hereof and provided that the provisions of Section Sections 1, 5 hereof, the indemnity and contribution agreements set forth in Section 7 and 8 hereof, and the provisions of Section 10, 13 and 16 9 hereof shall survive such termination and remain in full force and effect.

Appears in 1 contract

Samples: Underwriting Agreement (Laclede Gas Co)

Conditions of Obligations. The obligations obligation of each Underwriter hereunder the Agents, as agents of the Company, under this Agreement to solicit offers to purchase the Notes Securities, as well as the obligation of each Agent to be delivered at the Time of Delivery will be purchase Securities pursuant to any Purchase Agreement or otherwise, is subject to the accuracy of the representations and warranties on the part of the Corporation and the Guarantor herein Company contained as of the date hereof and as of the Time of Deliveryherein, to the accuracy of the statements of any duly authorized officer or official of the Corporation and the Guarantor Company’s officers made in any certificate furnished pursuant to the provisions of Section 6(b)(1)hereof to the extent then relevant, to the performance and observance by the Corporation and the Guarantor Company in all material respects of all their respective covenants and other its obligations hereunder hereunder, and to each of the following further additional terms and conditions: (1a) No stop order suspending the effectiveness of the Registration Statement Statement, or any part thereof thereof, nor any order directed to any document incorporated by reference in the Prospectus or the Disclosure Package shall have been issued under the Act or proceedings therefor and no stop order proceeding shall have been initiated or threatened by the Commission; (2) Commission and no Underwriter shall have been advised challenge by the Corporation that Commission shall be pending to the accuracy or adequacy of Registration Statement, the Time of Sale Prospectus or the Prospectus, Disclosure Package or any amendment or supplement thereto, at document incorporated by reference in the time it was required to be delivered to a purchaser foregoing documents; any request of the Notes, contained an untrue statement Commission for inclusion 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 existing at such time, not misleading; and (3) subsequent to the respective dates as of which additional information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there shall not have been any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (b) At the Time of Delivery the Manager shall have received: (1) A certificate or certificates, dated as of such time, signed by the Chief Executive of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that 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 and that, subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus and, if applicableor the Disclosure Package or otherwise shall have been withdrawn or complied with; and after the date of any Purchase Agreement (and prior to the closing date for the Securities referred to therein) the Company shall not have filed with the Commission any amendment or supplement to the Registration Statement, the Time of Sale Prospectus with respect to the Notes, there has been no material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus;Disclosure Package (or any document incorporated by reference in the foregoing documents) without the consent of the Agent or Agents party thereto. (2b) An opinionNo order suspending the sale of the Securities in any jurisdiction designated by an Agent pursuant to Section 3(l) hereof shall have been issued, and no proceeding for that purpose shall have been initiated or threatened. (c) The Agents shall not have discovered and disclosed to the Company that the Registration Statement, the Prospectus or the Disclosure Package, each as amended or supplemented, contains an untrue statement of a fact which, in the opinion of counsel for the Agents, is material or omits to state a 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. (d) On the Closing Date, the Agents shall have received from Cravath, Swaine & Xxxxx LLP, counsel for the Agents, such opinion and letter, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinionClosing Date, with respect to the Corporation being duly constitutedissuance and sale of the Securities, the validity of the Notes and the Guarantee of the Notes by the GuarantorIndenture, the Registration Statement, the ProspectusProspectus and the Disclosure Package, the Time of Sale Prospectus (if applicable) each as amended or supplemented, and other related matters as they the Agents may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may reasonably require, and the Corporation and the Guarantor Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their . (e) On the Closing Date, the Agents shall have received the opinion, Xxxxxxxx & Xxxxxxxx may rely on addressed to the opinions Agents and dated the Closing Date, of Xxxx Xxx List, Esq., General Counsel of the Mallesons Xxxxxxx Xxxxxx (or other counsel Company, in form and scope satisfactory to the Manager receiving such opinions) as Agents and their counsel, substantially to all matters governed by New South Wales and Australian law;the effect set forth in Exhibit D hereto. (4f) An opinion and negative assurance letterOn the Closing Date, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to Agents shall have received the Manager receiving such opinion and letter, with respect addressed to such matters as the Manager receiving such Agents and dated the Closing Date, of Xxxxx and Xxxxxxx LLP, counsel to the Company, which opinion may reasonably requestand letter shall be satisfactory in form and scope to counsel for the Agents, substantially to the effect set forth in Exhibit E-1 and the Corporation and the Guarantor Exhibit E-2 hereto. (g) The Company shall have furnished to the Agents on the Closing Date a certificate, dated the Closing Date, of its President, Chief Executive Officer, Vice President or Chief Financial Officer stating that: (i) the representations, warranties and agreements of the Company in Section 1 hereof are true and correct as of such counsel Closing Date; the Company has complied in all material respects with all its agreements contained herein; and the conditions set forth in Sections 5(a) and 5(b) hereof have been fulfilled, (ii) in his opinion, as of the effective date of the Registration Statement, the Registration Statement did not contain an untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, as of the Applicable Time, the Disclosure Package did not contain an untrue statement of a material fact and did not 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, and the Prospectus as of its date and as of the Closing Date did not contain an untrue statement of a material fact and did not 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, (iii) since the respective dates as of which information is given in the Registration Statement, the Prospectus and the Disclosure Package, as amended or supplemented, there has not been any material adverse change in the condition, financial or other, or earnings of the Company, whether or not arising from transactions in the ordinary course of business, (iv) since the effective date of the Registration Statement, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus but which has not been so set forth or incorporated by reference therein, (v) the Company has no material contingent obligations which are required to be disclosed in the Registration Statement, the Prospectus or the Disclosure Package and are not disclosed therein, (vi) no stop order suspending the effectiveness of the Registration Statement is in effect on such documents as they reasonably request Closing Date and no proceedings for the purpose issuance of enabling them such an order have been taken or to pass upon the knowledge of the Company are contemplated by the Commission on or prior to such matters; andClosing Date, (vii) there are no material legal proceedings to which the Company is a party or of which property of the Company is the subject which are required to be disclosed in the Registration Statement, the Prospectus or the Disclosure Package and are not disclosed therein and (viii) there are no material contracts to which the Company is a party which are required to be disclosed in the Registration Statement, the Prospectus or the Disclosure Package and are not disclosed therein. (5h) From Deloitte and Touche LLP (or successor independent public accountants with respect to the Auditor General Company within the meaning of the State of New South WalesSecurities Act and the rules and regulations thereunder) shall have furnished to the Agents, at or any successor independent auditorprior to the Closing Date, a letter, addressed to the Agents and dated as the Closing Date, confirming that they are independent public accountants with respect to the Company within the meaning of such time, the Securities Act and delivered at such timeare in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, substantially to the effect set forth in the form attached hereto as Annex A.Exhibit F hereto. (ci) There shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities of the Company or generally on the The New York Stock Exchange or the Australian Stock Exchange; , (ii) a general banking moratorium on commercial banking activities (A) in New York declared by either U.S. federal Federal or New York State regulatory authorities state authorities, (iii) any outbreak of hostilities involving the United States, any escalation of hostilities involving the United States, any attack on the United States or any act of terrorism in which the United States is involved, (Biv) in Australia declared by the Australian regulatory authorities or a material any major disruption in commercial banking or the settlement of securities settlement or clearance systems in the United States or Australia; (iii) any outbreak other relevant jurisdiction or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any a declaration of a national emergency or war by either of the United States or (v) such countries, or any other calamity or crisis or materially a material adverse change in general economic, political or financial conditions having an domestically or internationally (or the effect of international conditions on the U.S. or Australian financial markets; (iv) any downgrading markets in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia the effect of conditions in the United States on international financial markets shall be such) the effect of which could reasonably be expected to have a material adverse effect on is, in any case described in clause (iv) or (v), in the holders judgment of the Notesrelevant Agent (which, which in the case of any of a syndicated issue, shall be the events described in clauses (i) through (iv) abovelead manager(s)), individually or in the aggregate, in the sole judgment of the Manager, makes to make it impracticable or inadvisable to proceed with the consummation solicitation of offers to purchase or the purchase or delivery of the purchase of Notes by the Underwriters for sale to others Securities on the terms and in the manner contemplated in the Time Prospectus; provided, however, that in the event that any Agent agrees to purchase Securities as a principal (whether pursuant to a Purchase Agreement or otherwise) there shall not have occurred any of Sale Prospectus and the Prospectus, each as then amended or supplementedforegoing subsequent to the date of such agreement. (dj) At Prior to the Time of DeliveryClosing Date, the Underwriters Company shall have been furnished with to the Agents and to Cravath, Swaine & Xxxxx LLP, counsel to the Agents, such further certificates and documents and opinions as they the Agents or counsel to the Agents may have reasonably require in order requested prior to evidence the accuracy and completeness of Closing Date. If any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition conditions specified in this Section 6 5 shall not have been fulfilled when and as required by this Agreement to be fulfilled, this Agreement and all obligations of the Agents hereunder may be terminated by the Manager by notice to the Corporation canceled on, or at any time at or prior to, any Closing Date by the Agents. Notice of such cancellation shall be given to the Time of Delivery Company in writing, or by facsimile, telephone or telex confirmed in writing. All opinions, letters, evidence and such termination certificates mentioned above or elsewhere in this Agreement shall be without liability of any party deemed to any other party, except that be in compliance with the provisions hereof only if they are on the date of delivery in the form and scope satisfactory to counsel for the Agents. In the event that any Agent purchases Securities as a principal (whether pursuant to a Purchase Agreement or otherwise), the conditions of Section 5 hereof, 3 of the indemnity and contribution agreements Purchase Agreement set forth in Section 7 and 8 hereof, and the provisions of Section 10, 13 and 16 hereof Exhibit C hereto shall remain in effectalso apply to such purchase.

Appears in 1 contract

Samples: Agency Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)

Conditions of Obligations. The obligations obligation of each Underwriter hereunder the Agents, as agents of the Company, under this Agreement to solicit offers to purchase the Notes Securities, as well as the obligation of each Agent to be delivered at the Time of Delivery will be purchase Securities pursuant to any Terms Agreement or otherwise, is subject to the accuracy of the representations and warranties on the part of the Corporation and the Guarantor herein Company contained as of the date hereof and as of the Time of Deliveryherein, to the accuracy of the statements of any duly authorized officer or official of the Corporation and the Guarantor Company’s officers made in any certificate furnished pursuant to the provisions of Section 6(b)(1)hereof to the extent then relevant, to the performance and observance by the Corporation and the Guarantor Company in all material respects of all their respective covenants and other its obligations hereunder hereunder, and to each of the following further additional terms and conditions: (1a) No stop order suspending the effectiveness of the Registration Statement Statement, or any part thereof thereof, nor any order directed to any document incorporated by reference in the Prospectus or the Disclosure Package shall have been issued under the Act or proceedings therefor and no stop order proceeding shall have been initiated or threatened by the Commission; (2) Commission and no Underwriter shall have been advised challenge by the Corporation that Commission shall be pending to the accuracy or adequacy of Registration Statement, the Time of Sale Prospectus or the Prospectus, Disclosure Package or any amendment or supplement thereto, at document incorporated by reference in the time it was required to be delivered to a purchaser foregoing documents; any request of the Notes, contained an untrue statement Commission for inclusion 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 existing at such time, not misleading; and (3) subsequent to the respective dates as of which additional information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there shall not have been any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (b) At the Time of Delivery the Manager shall have received: (1) A certificate or certificates, dated as of such time, signed by the Chief Executive of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that 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 and that, subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus and, if applicableor the Disclosure Package or otherwise shall have been withdrawn or complied with; and after the date of any Terms Agreement (and prior to the Settlement Date for the Securities referred to therein) the Company shall not have filed with the Commission any amendment or supplement to the Registration Statement, the Time of Sale Prospectus with respect to the Notes, there has been no material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus;Disclosure Package (or any document incorporated by reference in the foregoing documents) without the consent of the Agent or Agents party thereto. (2b) An No order suspending the sale of the Securities in any jurisdiction designated by an Agent pursuant to Section 3(l) hereof shall have been issued, and no proceeding for that purpose shall have been initiated or threatened. (c) The Agents shall not have discovered and disclosed to the Company that the Registration Statement, the Prospectus or the Disclosure Package, each as amended or supplemented, contains an untrue statement of a fact which, in the opinion of counsel for the Agents, is material or omits to state a 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. (d) On the Closing Date, the Agents shall have received from Xxxxx & XxXxxxx LLP, counsel for the Agents, such opinion, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinionClosing Date, with respect to the Corporation being duly constitutedissuance and sale of the Securities, the validity of the Notes and the Guarantee of the Notes by the GuarantorIndenture, the Registration Statement, the ProspectusProspectus and the Disclosure Package, the Time of Sale Prospectus (if applicable) each as amended or supplemented, and other related matters as they the Agents may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may reasonably require, and the Corporation and the Guarantor Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their . (e) On the Closing Date, the Agents shall have received the opinion, Xxxxxxxx & Xxxxxxxx may rely on addressed to the opinions Agents and dated the Closing Date, of Xxxx Xxx List, Esq., General Counsel of the Mallesons Xxxxxxx Xxxxxx (or other counsel Company, in form and scope satisfactory to the Manager receiving such opinions) as Agents and their counsel, substantially to all matters governed by New South Wales and Australian law;the effect set forth in Exhibit D hereto. (4f) An opinion and negative assurance letterOn the Closing Date, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to Agents shall have received the Manager receiving such opinion and letter, with respect addressed to such matters as the Manager receiving such Agents and dated the Closing Date, of Xxxxx Lovells US LLP, counsel to the Company, which opinion may reasonably requestand letter shall be satisfactory in form and scope to counsel for the Agents, substantially to the effect set forth in Exhibit E-1 and the Corporation and the Guarantor Exhibit E-2 hereto. (g) The Company shall have furnished to the Agents on the Closing Date a certificate, dated the Closing Date, of its President, Chief Executive Officer, Treasurer, Vice President or Chief Financial Officer stating that: (i) the representations, warranties and agreements of the Company in Section 1 hereof are true and correct as of such counsel Closing Date; the Company has complied in all material respects with all its agreements contained herein; and the conditions set forth in Sections 5(a) and 5(b) hereof have been fulfilled, (ii) in his opinion, as of the effective date of the Registration Statement, the Registration Statement did not contain an untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, if the certificate is being delivered pursuant to a Terms Agreement (as hereafter defined), as of the Applicable Time, the Disclosure Package did not contain an untrue statement of a material fact and did not 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, and the Prospectus as of its date and as of the Closing Date did not contain an untrue statement of a material fact and did not 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, (iii) since the respective dates as of which information is given in the Registration Statement, the Prospectus and the Disclosure Package, as amended or supplemented, there has not been any material adverse change in the condition, financial or other, or earnings of the Company, whether or not arising from transactions in the ordinary course of business, (iv) since the effective date of the Registration Statement, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus but which has not been so set forth or incorporated by reference therein, (v) the Company has no material contingent obligations which are required to be disclosed in the Registration Statement, the Prospectus or the Disclosure Package and are not disclosed therein, (vi) no stop order suspending the effectiveness of the Registration Statement is in effect on such documents as they reasonably request Closing Date and no proceedings for the purpose issuance of enabling them such an order have been taken or to pass upon the knowledge of the Company are contemplated by the Commission on or prior to such matters; andClosing Date, (vii) there are no material legal proceedings to which the Company is a party or of which property of the Company is the subject which are required to be disclosed in the Registration Statement, the Prospectus or the Disclosure Package and are not disclosed therein and (viii) there are no material contracts to which the Company is a party which are required to be disclosed in the Registration Statement, the Prospectus or the Disclosure Package and are not disclosed therein. (5h) From Deloitte and Touche LLP (or successor independent public accountants with respect to the Auditor General Company within the meaning of the State of New South WalesSecurities Act and the rules and regulations thereunder) shall have furnished to the Agents, at or any successor independent auditorprior to the Closing Date, a letter, addressed to the Agents and dated as the Closing Date, confirming that they are independent public accountants with respect to the Company within the meaning of such time, the Securities Act and delivered at such timeare in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, substantially to the effect set forth in the form attached hereto as Annex A.Exhibit F hereto. (ci) There shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities of the Company or generally on the The New York Stock Exchange or the Australian Stock Exchange; , (ii) a general banking moratorium on commercial banking activities (A) in New York declared by either U.S. federal Federal or New York State regulatory authorities state authorities, (iii) any outbreak of hostilities involving the United States, any escalation of hostilities involving the United States, any attack on the United States or any act of terrorism in which the United States is involved, (Biv) in Australia declared by the Australian regulatory authorities or a material any major disruption in commercial banking or the settlement of securities settlement or clearance systems in the United States or Australia; (iii) any outbreak other relevant jurisdiction or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any a declaration of a national emergency or war by either of the United States or (v) such countries, or any other calamity or crisis or materially a material adverse change in general economic, political or financial conditions having an domestically or internationally (or the effect of international conditions on the U.S. or Australian financial markets; (iv) any downgrading markets in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse the effect on the holders of the Notes, which conditions in the United States on international financial markets shall be such) the effect of which is, in any case of any of the events described in clauses (i) through clause (iv) above, individually or in the aggregate(v), in the sole judgment of the ManagerPurchasing Agent, makes to make it impracticable or inadvisable to proceed with the consummation solicitation of offers to purchase or the purchase or delivery of the purchase of Notes by the Underwriters for sale to others Securities on the terms and in the manner contemplated in the Time Prospectus; provided, however, that in the event that any Agent agrees to purchase Securities as a principal (whether pursuant to a Terms Agreement or otherwise) there shall not have occurred any of Sale Prospectus and the Prospectus, each as then amended or supplementedforegoing subsequent to the date of such agreement. (dj) At Prior to the Time of DeliveryClosing Date, the Underwriters Company shall have been furnished to the Agents and to Xxxxx & XxXxxxx LLP, counsel to the Agents, such further certificates and documents as the Agents or counsel to the Agents may have reasonably requested prior to the Closing Date. (k) Subsequent to the execution of any Terms Agreement and prior to the Settlement Date: (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization”, as that term is defined by the Commission for the purposes of Rule 436(g)(2) of the Securities Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, with such documents and opinions as they may reasonably require in order to evidence the accuracy and completeness possible negative implications, its rating of any of the representations and warranties, or the fulfillment of Company’s debt securities. If any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition conditions specified in this Section 6 5 shall not have been fulfilled when and as required to be fulfilled, this Agreement (or, at the option of any Agent, acting as principal, any applicable Terms Agreement) and all obligations of any Agent hereunder (or under any applicable Terms Agreement) may be terminated canceled by the Manager by notice any such Agent, insofar as this Agreement relates to such Agent at any time. Notice of such cancellation shall be given to the Corporation at any time at Company in writing, or prior to the Time of Delivery and such termination shall be without liability of any party to any other partyby facsimile, except that the telephone or telex confirmed in writing. The provisions of Section 5 hereofSections 3(c), the indemnity and contribution agreements set forth in Section 7 and 8 hereof3(h), and the provisions of Section 104, 13 7, 8, 9, 13, 14 and 16 hereof shall remain survive any such cancellation. All opinions, letters, evidence and certificates mentioned above or elsewhere in effectthis Agreement shall be deemed to be in compliance with the provisions hereof only if they are on the date of delivery in the form and scope reasonably satisfactory to counsel for the Agents.

Appears in 1 contract

Samples: Agency Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)

Conditions of Obligations. The obligations of each Underwriter hereunder Distributor, as agent of the Issuer, under this Agreement or any Terms Agreement at any time to solicit offers to purchase the Notes Securities and to be delivered at purchase Securities from the Time of Delivery will be Issuer as principal is subject to the accuracy accuracy, on the date hereof, on each Representation Date and on the date of each such solicitation and any settlement date related to such an offer, of the representations and warranties on the part of the Corporation and the Guarantor herein contained as of the date hereof and as of the Time of DeliveryIssuer herein, to the accuracy accuracy, on each such date, of the statements of any duly authorized officer or official of the Corporation and the Guarantor Issuer’s officers made in any certificate furnished pursuant to the provisions of Section 6(b)(1)hereof, to the performance and observance performance, on or prior to each such date, by the Corporation and the Guarantor Issuer of all their respective covenants and other its obligations hereunder hereunder, and to each of the following further conditionsadditional conditions precedent: (1a) No The Prospectus, as amended or supplemented as of any Representation Date or date of such solicitation, as the case may be, shall have been filed with the Commission in accordance with the Rules and Regulations and no stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued under and no proceedings for that purpose shall have been instituted or, to the Act knowledge of the Issuer or proceedings therefor initiated or threatened any Distributor, shall be contemplated by the Commission; . (2b) no Underwriter shall have been advised by the Corporation that Neither the Registration Statement, the Time of Sale Prospectus or Statement nor the Prospectus, as amended or supplemented as of any amendment Representation Date or supplement theretodate of such solicitation, at as the time it was required to be delivered to a purchaser of the Notescase may be, contained an shall contain any untrue statement of a material fact or omitted omit to state a material fact which is required to be stated therein or necessary in order to make the statements thereintherein not misleading. (c) There shall not have occurred (i) any change, or any development or event involving a prospective change, in the light condition (financial or other), business, properties or results of operations of the circumstances existing at Issuer or its subsidiaries which, in the judgment of such timeDistributor, not misleadingis material and adverse and makes it impractical or inadvisable to proceed with completion of the public offering or the sale of and payment for the Securities; (ii) any downgrading in the rating of any debt securities or preferred stock of the Issuer by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities or preferred stock of the Issuer (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (3iii) subsequent 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 the Issuer on the New York Stock Exchange; (iv) any banking moratorium declared by U.S. Federal or New York authorities; (v) any material disruption in commercial banking or securities settlement or clearance services in the United States or with respect to the respective dates clearing systems operated by Clearstream Banking S.A. or Euroclear Bank S.A./N.V., as operator of the Euroclear System in Europe if, in the reasonable judgment of such Distributor, the effect of any such disruption makes it impractical or inadvisable to proceed with completion of the public offering or the sale and payment for the Securities; or (vi) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the reasonable judgment of such Distributor, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with solicitations of offers to purchase, or sales of, Securities. (d) With respect to any Security denominated in a currency other than the U.S. dollar, more than one currency or a composite currency or any Security the principal or interest of which information is given in the Registration Statementindexed to such currency, the Time of Sale Prospectus and the Prospectuscurrencies or composite currency, there shall not have been occurred a suspension or material limitation in foreign exchange trading in such currency, currencies or composite currency, a general moratorium on commercial banking activities in the country or countries issuing such currency, currencies or composite currency, the outbreak or escalation of hostilities involving, the occurrence of any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the existing financial, political or economic conditions of, or the financial declaration of war or economic prospects a national emergency by, the country or countries issuing such currency, currencies or composite currency or the imposition or proposal of exchange controls by any governmental authority in the country or countries issuing such currency, currencies or composite currency. (e) At the Closing Date and, if specified in a Terms Agreement, at the time of delivery of the Guarantor except Securities described in such Terms Agreement, the Distributors or each Purchasing Distributor, as the case may be, shall have received (1) an opinion, dated the Closing Date, or such date of delivery, as the case may be, of the General Counsel for the Issuer, substantially as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus;Exhibit E-1 hereto; and (b2) an opinion, dated the Closing Date, or such date of delivery, as the case may be, of Xxxxx Xxxx & Xxxxxxxx, counsel for the Issuer, substantially as set forth in Exhibit E-2 hereto. (f) At the Time Closing Date and, if specified in a Terms Agreement, at the time of Delivery delivery of the Manager Securities described in such Terms Agreement, the Distributors or each Purchasing Distributor, as the case may be, shall have received: (1) A certificate or certificatesreceived a certificate, dated the Closing Date or such date of delivery, as of such timethe case may be, signed by the Chief Executive of the Corporation in respect President or any Vice President and a principal financial or accounting officer of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, Issuer in which such personsofficers, to the best of their knowledge, shall state that (i) the representations and warranties of the Corporation and the Guarantor Issuer in this Agreement are true and correct, that (ii) the Corporation and the Guarantor have Issuer has complied with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Closing Date or such timedate of delivery, that as the case may be, (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 initiated or are contemplated by the Commission Commission, and that, (iv) subsequent to the respective dates as date of which information is given the most recent financial statements in the Registration Statement, the Prospectus and, if applicable, the Time of Sale Prospectus with respect to the NotesProspectus, there has been no material adverse change change, nor any development or event involving a prospective material adverse change, in the condition (financial positionor otherwise), business, properties or results of operation, business affairs or business prospects operations of the Corporation or the financialIssuer and its subsidiaries, political or economic conditions or the financial or economic prospects of the Guarantor taken as a whole, except as set forth in or contemplated by the Time Prospectus or as described in such certificate. In the case of Sale each such certificate delivered pursuant to a Terms Agreement, the statements contained in such certificate relating to the Registration Statement or the Prospectus shall relate to the Registration Statement or the Prospectus, as the case may be, as amended or supplemented as of the date of the Issuer’s acceptance of the offer to purchase such Securities and as of the time of delivery of such Securities. (g) At the Closing Date and, if specified in a Terms Agreement, at the time of delivery of the Securities described in such Terms Agreement, the Distributors or each Purchasing Distributor, as the case may be, shall have received a letter, dated the Closing Date or such date of delivery, as the case may be, of PricewaterhouseCoopers LLP, confirming that they are independent public accountants within the meaning of the Act and the applicable published Rules and Regulations thereunder and stating to the effect that: (i) in their opinion, the financial statements and schedules and summary of earnings, if any, examined by them and included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the related Rules and Regulations adopted by the Commission; (2ii) An opinionthey have performed the procedures specified by the American Institute of Certified Public Accountants for a review of interim financial information as described in Statement of Auditing Standards No. 71, Interim Financial Information, on any unaudited financial statements included in the Registration Statement; (iii) on the basis of the review, if any, referred to in clause (ii) above, a reading of the latest available interim financial statements of the Issuer, inquiries of officials of the Issuer who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that: (A) the unaudited financial statements, if any, and any summary of earnings included in the Prospectus do not comply as to form in all material respects with the applicable accounting requirements of the Securities Exchange Act of 1934 as it applies to Form 10-Q and the related Rules and Regulations adopted by the Commission or any material modifications should be made to such unaudited financial statements and summary of earnings for them to be in conformity with generally accepted accounting principles; (B) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than three business days prior to the date of this Agreement, there was any change in the capital stock or any increase in long-term debt of the Issuer and its consolidated subsidiaries or, at the date of the latest available balance sheet read by such accountants, there was any decrease in consolidated net current assets, net assets or stockholders’ equity, as compared with amounts shown on the latest balance sheet included in the Prospectus; or (C) for the period from the closing date of the latest available income statement included in the Prospectus to the closing date of the latest available income statement read by such accountants there were any decreases, as compared with the corresponding period of the previous year and with the period of corresponding length ended the date of the latest income statement included in the Prospectus, in consolidated total revenues, income from continuing operations before taxes or net income; except in all cases set forth in clauses (B) and (C) above, for changes, increases or decreases which the Prospectus discloses have occurred or may occur or which are described in such letter; and (iv) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the Registration Statement (in each case to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Issuer and its subsidiaries subject to the internal controls of the Issuer’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. All financial statements and schedules included in material incorporated by reference into the Prospectus shall be deemed included in the Prospectus for purposes of this subsection. In the case of each such letter delivered pursuant to a Terms Agreement, the statements contained in such letter relating to the Registration Statement or the Prospectus shall relate to the Registration Statement or the Prospectus, as the case may be, as amended or supplemented as of the date of the Issuer’s acceptance of the offer to purchase such Securities, as the case may be, and as of the time of delivery of such Securities. (h) At the Closing Date, the Distributors shall have received from Xxxxxxxx & Xxxxxxxx LLP, counsel for the Distributors, such opinion or opinions, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinionClosing Date, with respect to the Corporation being duly constitutedincorporation of the Issuer, the validity of the Notes and the Guarantee of the Notes by the GuarantorSecurities, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they the Distributors may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may reasonably require, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their opinion, Xxxxxxxx & Xxxxxxxx may rely on the opinions of the Mallesons Xxxxxxx Xxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by New South Wales and Australian law; (4) An opinion and negative assurance letter, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to such matters as the Manager receiving such opinion may reasonably request, and the Corporation and the Guarantor Issuer shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters; and. (5) From the Auditor General of the State of New South Wales, or any successor independent auditor, a letter, dated as of such time, and delivered at such time, substantially in the form attached hereto as Annex A. (c) There shall not have occurred any of the following: (i) a suspension The Issuer shall have furnished to the Distributors or material limitation in trading in securities generally on their counsel such further certificates and documents as the New York Stock Exchange Distributors or such counsel reasonably request. The Issuer will furnish the Australian Stock Exchange; (ii) a general moratorium on commercial banking activities (A) in New York declared by either U.S. federal or New York State regulatory authorities or (B) in Australia declared by the Australian regulatory authorities or a material disruption in commercial banking or securities settlement or clearance systems in the United States or Australia; (iii) any outbreak or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any declaration of a national emergency or war by either Distributors with such conformed copies of such countriesopinions, or any other calamity or crisis or materially adverse change in general economiccertificates, political or financial conditions having an effect on the U.S. or Australian financial markets; (iv) any downgrading in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse effect on the holders of the Notes, which in the case of any of the events described in clauses (i) through (iv) above, individually or in the aggregate, in the sole judgment of the Manager, makes it impracticable or inadvisable to proceed with the consummation of the purchase of Notes by the Underwriters for sale to others on the terms letters and in the manner contemplated in the Time of Sale Prospectus and the Prospectus, each as then amended or supplemented. (d) At the Time of Delivery, the Underwriters shall have been furnished with such documents and opinions as they may reasonably require in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Manager by notice to the Corporation at any time at or prior to the Time of Delivery and such termination shall be without liability of any party to any other party, except that the provisions of Section 5 hereof, the indemnity and contribution agreements set forth in Section 7 and 8 hereof, and the provisions of Section 10, 13 and 16 hereof shall remain in effectrequest.

Appears in 1 contract

Samples: Distribution Agreement (Pitney Bowes Inc /De/)

Conditions of Obligations. The obligations obligation of each Underwriter hereunder the Agents, as agents of the Company, under this Agreement to solicit offers to purchase the Notes Securities, as well as the obligation of each Agent to be delivered at the Time of Delivery will be purchase Securities pursuant to any Purchase Agreement or otherwise, is subject to the accuracy of the representations and warranties on the part of the Corporation and the Guarantor herein Company contained as of the date hereof and as of the Time of Deliveryherein, to the accuracy of the statements of any duly authorized officer or official of the Corporation and the Guarantor Company’s officers made in any certificate furnished pursuant to the provisions of Section 6(b)(1)hereof to the extent then relevant, to the performance and observance by the Corporation and the Guarantor Company in all material respects of all their respective covenants and other its obligations hereunder hereunder, and to each of the following further additional terms and conditions: (1a) No stop order suspending the effectiveness of the Registration Statement Statement, or any part thereof thereof, nor any order directed to any document incorporated by reference in the Prospectus or the Disclosure Package shall have been issued under the Act or proceedings therefor and no stop order proceeding shall have been initiated or threatened by the Commission; (2) Commission and no Underwriter shall have been advised challenge by the Corporation that Commission shall be pending to the accuracy or adequacy of Registration Statement, the Time of Sale Prospectus or the Prospectus, Disclosure Package or any amendment or supplement thereto, at document incorporated by reference in the time it was required to be delivered to a purchaser foregoing documents; any request of the Notes, contained an untrue statement Commission for inclusion 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 existing at such time, not misleading; and (3) subsequent to the respective dates as of which additional information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there shall not have been any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (b) At the Time of Delivery the Manager shall have received: (1) A certificate or certificates, dated as of such time, signed by the Chief Executive of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that 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 and that, subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus and, if applicableor the Disclosure Package or otherwise shall have been withdrawn or complied with; and after the date of any Purchase Agreement (and prior to the closing date for the Securities referred to therein) the Company shall not have filed with the Commission any amendment or supplement to the Registration Statement, the Time of Sale Prospectus with respect to the Notes, there has been no material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus;Disclosure Package (or any document incorporated by reference in the foregoing documents) without the consent of the Agent or Agents party thereto. (2b) An opinionNo order suspending the sale of the Securities in any jurisdiction designated by an Agent pursuant to Section 3(1) hereof shall have been issued, and no proceeding for that purpose shall have been initiated or threatened. (c) The Agents shall not have discovered and disclosed to the Company that the Registration Statement, the Prospectus or the Disclosure Package, each as amended or supplemented, contains an untrue statement of a fact which, in the opinion of counsel for the Agents, is material or omits to state a 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. (d) On the Closing Date, the Agents shall have received from Hunton & Xxxxxxxx LLP, counsel for the Agents, such opinion and letter, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinionClosing Date, with respect to the Corporation being duly constitutedissuance and sale of the Securities, the validity of the Notes and the Guarantee of the Notes by the GuarantorIndenture, the Registration Statement, the ProspectusProspectus and the Disclosure Package, the Time of Sale Prospectus (if applicable) each as amended or supplemented, and other related matters as they the Agents may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may reasonably require, and the Corporation and the Guarantor Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their . (e) On the Closing Date, the Agents shall have received the opinion, Xxxxxxxx & Xxxxxxxx may rely on addressed to the opinions Agents and dated the Closing Date, of Xxxxxxx X. Xxxxxxx, Xxx., General Counsel of the Mallesons Xxxxxxx Xxxxxx (or other counsel Company, in form and scope satisfactory to the Manager receiving such opinions) as Agents and their counsel, substantially to all matters governed by New South Wales and Australian law;the effect set forth in Exhibit D hereto. (4f) An opinion and negative assurance letterOn the Closing Date, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to Agents shall have received the Manager receiving such opinion and letter, with respect addressed to such matters as the Manager receiving such Agents and dated the Closing Date, of Xxxxx Xxxxxxx US LLP, counsel to the Company, which opinion may reasonably requestand letter shall be satisfactory in form and scope to counsel for the Agents, substantially to the effect set forth in Exhibit E-1 and the Corporation and the Guarantor Exhibit E-2 hereto. (g) The Company shall have furnished to the Agents on the Closing Date a certificate, dated the Closing Date, of its President, Chief Executive Officer, Vice President or Chief Financial Officer stating that: (i) the representations, warranties and agreements of the Company in Section 1 hereof are true and correct as of such counsel Closing Date; the Company has complied in all material respects with all its agreements contained herein; and the conditions set forth in Sections 5(a) and 5(b) hereof have been fulfilled, (ii) in his opinion, as of the effective date of the Registration Statement, the Registration Statement did not contain an untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, if the certificate is being delivered pursuant to a Purchase Agreement (as hereafter defined), as of the Applicable Time, the Disclosure Package did not contain an untrue statement of a material fact and did not 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, and the Prospectus as of its date and as of the Closing Date did not contain an untrue statement of a material fact and did not 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, (iii) since the respective dates as of which information is given in the Registration Statement, the Prospectus and the Disclosure Package, as amended or supplemented, there has not been any material adverse change in the condition, financial or other, or earnings of the Company, whether or not arising from transactions in the ordinary course of business, (iv) since the effective date of the Registration Statement, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus but which has not been so set forth or incorporated by reference therein, (v) the Company has no material contingent obligations which are required to be disclosed in the Registration Statement, the Prospectus or the Disclosure Package and are not disclosed therein, (vi) no stop order suspending the effectiveness of the Registration Statement is in effect on such documents as they reasonably request Closing Date and no proceedings for the purpose issuance of enabling them such an order have been taken or to pass upon the knowledge of the Company are contemplated by the Commission on or prior to such matters; andClosing Date, (vii) there are no material legal proceedings to which the Company is a party or of which property of the Company is the subject which are required to be disclosed in the Registration Statement, the Prospectus or the Disclosure Package and are not disclosed therein and (viii) there are no material contracts to which the Company is a party which are required to be disclosed in the Registration Statement, the Prospectus or the Disclosure Package and are not disclosed therein. (5h) From KPMG LLP (or successor independent public accountants with respect to the Auditor General Company within the meaning of the State of New South WalesSecurities Act and the rules and regulations thereunder) shall have furnished to the Agents, at or any successor independent auditorprior to the Closing Date, a letter, addressed to the Agents and dated as the Closing Date, confirming that they are independent public accountants with respect to the Company within the meaning of such time, the Securities Act and delivered at such timeare in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, substantially to the effect set forth in the form attached hereto as Annex A.Exhibit F hereto. (ci) There shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities of the Company or generally on the The New York Stock Exchange or the Australian Stock Exchange; , (ii) a general banking moratorium on commercial banking activities (A) in New York declared by either U.S. federal Federal or New York State regulatory authorities state authorities, (iii) any outbreak of hostilities involving the United States, any escalation of hostilities involving the United States, any attack on the United States or any act of terrorism in which the United States is involved, (Biv) in Australia declared by the Australian regulatory authorities or a material any major disruption in commercial banking or the settlement of securities settlement or clearance systems in the United States or Australia; (iii) any outbreak other relevant jurisdiction or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any a declaration of a national emergency or war by either of the United States or (v) such countries, or any other calamity or crisis or materially a material adverse change in general economic, political or financial conditions having an domestically or internationally (or the effect of international conditions on the U.S. or Australian financial markets; (iv) any downgrading markets in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia the effect of conditions in the United States on international financial markets shall be such) the effect of which could reasonably be expected to have a material adverse effect on is, in any case described in clause (iv) or (v), in the holders judgment of the Notesrelevant Agent (which, which in the case of any of a syndicated issue, shall be the events described in clauses (i) through (iv) abovelead manager(s)), individually or in the aggregate, in the sole judgment of the Manager, makes to make it impracticable or inadvisable to proceed with the consummation solicitation of offers to purchase or the purchase or delivery of the purchase of Notes by the Underwriters for sale to others Securities on the terms and in the manner contemplated in the Time Prospectus; provided, however, that in the event that any Agent agrees to purchase Securities as a principal (whether pursuant to a Purchase Agreement or otherwise) there shall not have occurred any of Sale Prospectus and the Prospectus, each as then amended or supplementedforegoing subsequent to the date of such agreement. (dj) At Prior to the Time of DeliveryClosing Date, the Underwriters Company shall have been furnished with to the Agents and to Xxxxxx & Xxxxxxxx LLP, counsel to the Agents, such further certificates and documents and opinions as they the Agents or counsel to the Agents may have reasonably require in order requested prior to evidence the accuracy and completeness of Closing Date. If any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition conditions specified in this Section 6 5 shall not have been fulfilled when and as required to be fulfilled, this Agreement (or, at the option of any Agent, acting as principal, any applicable Purchase Agreement) and all obligations of the Agents hereunder (or under any applicable Purchase Agreement) may be terminated canceled by the Manager by notice any Agent, insofar as this Agreement relates to such Agent at any time. Notice of such cancellation shall be given to the Corporation at any time at Company in writing, or prior to the Time of Delivery and such termination shall be without liability of any party to any other partyby facsimile, except that the telephone or telex confirmed in writing. The provisions of Section 5 hereofSections 3(c), the indemnity and contribution agreements set forth in Section 7 and 8 hereof3(h), and the provisions of Section 104, 13 7, 8, 9, 13, 14 and 16 hereof shall remain survive any such cancellation. All opinions, letters, evidence and certificates mentioned above or elsewhere in effectthis Agreement shall be deemed to be in compliance with the provisions hereof only if they are on the date of delivery in the form and scope reasonably satisfactory to counsel for the Agents. In the event that any Agent purchases Securities as a principal (whether pursuant to a Purchase Agreement or otherwise), the conditions of Section 3 of the Purchase Agreement set forth in Exhibit C hereto shall also apply to such purchase.

Appears in 1 contract

Samples: Agency Agreement

Conditions of Obligations. The Your several obligations of each Underwriter hereunder to solicit offers to purchase the Notes Offered Securities as Agent(s) and your obligations to be delivered at the Time of Delivery purchase Offered Securities pursuant to any Terms Agreement or otherwise will be subject to the accuracy of the representations and warranties on the part of the Corporation and the Guarantor herein contained as of the date hereof and as of the Time of DeliveryCompany herein, to the accuracy of the statements of any duly authorized officer or official of the Corporation and the Guarantor Company's officers made in any each certificate furnished pursuant to the provisions of Section 6(b)(1)hereof, to the performance and observance by the Corporation and the Guarantor Company of all their respective covenants and other obligations hereunder agreements herein contained on its part to be performed and observed and to the following further conditionsadditional conditions precedent: (1a) No stop At and subsequent to the date hereof and at each Closing Time no stop-order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under and remain outstanding and no proceedings for that purpose shall have been instituted or, to your knowledge or the Act knowledge of the Company, threatened or proceedings therefor initiated or threatened contemplated by the Commission; . (2b) At the date hereof and at each Closing Time if called for by the applicable Terms Agreement, each of you (or, with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) shall have received an opinion, dated, as applicable, either the date hereof or such Closing Time, of counsel for the Company acceptable to the Agents (it being understood that the opinion of the General Counsel or Vice President, Legal of the Company shall be acceptable to the Agents unless otherwise provided in the Terms Agreement), substantially identical to the proposed form of their opinion heretofore delivered to each of you. (i) At the date hereof and at each Closing Time, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus (except as set forth in or contemplated by the Registration Statement and the Prospectus), the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions not in the ordinary course of business, nor shall there have been any material decrease in the stockholders' equity or any material increase in the long-term debt of the Company or any material adverse change in the condition, financial or otherwise, or in the earnings, affairs or business prospects of the Company, whether or not arising in the ordinary course of business. (ii) At the date hereof and at each Closing Time if called for by the applicable Terms Agreement, each of you (or, with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) shall have received a certificate, dated, as applicable, the date hereof or such Closing Time, signed by the officers of the Company specified in Section 4(g), certifying that, to the best of their knowledge after reasonable investigation, the statements made in the immediately preceding paragraph (i) are accurate and to the effect that (A) no Underwriter stop-order suspending the effectiveness of the Registration Statement has been issued, and no proceedings for that purpose have been instituted or, to the knowledge of such officers, are threatened or contemplated by the Commission, (B) the Registration Statement and the Prospectus conform in all material respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations, (C) neither the Registration Statement nor the Prospectus contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein, in the case of the Prospectus, in the light of the circumstances under which they were made, not misleading, except that the foregoing does not apply to (i) statements or omissions in the Registration Statement or the Prospectus made in reliance upon information furnished in writing to the Company by any of you or on your behalf expressly for use therein, it being understood and agreed that the only such information consists of the information described as such in Section 6(b) hereof, or (ii) that part of the Registration Statement that constitutes the Statement of Eligibility under the Trust Indenture Act on Form T-1 of any Trustee, except statements or omissions in such Statement made in reliance upon information furnished in writing to such Trustee by or on behalf of the Company for use therein, and (D) the representations and warranties of the Company included in Sections 2(a) through 2(g) are, as of the Closing Time, accurate in all material respects and the Company has performed and observed all covenants and agreements herein contained on its part to be performed and observed prior to the Closing Time. (d) At the date hereof, and at each Closing Time if called for by the applicable Terms Agreement, each of you (or, with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) shall have been advised received a letter, dated as of the Closing Time, signed by the Corporation Accountants, substantially identical to the proposed form of such letter heretofore delivered to each of you. (e) At the date hereof and at each Closing Time if called for by the applicable Terms Agreement, each of you (or with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) shall have received an opinion, dated such date, of Shearman & Sterling, or other counsel selected by the Agents, with respect to the Company, the Offered Securities, the Registration Statement, including the form of final prospectus included therein, this Agreement and the form and sufficiency of all proceedings taken in connection with the authorization, sale and delivery of the Offered Securities, all of which shall be satisfactory in all respects to you, and the Company shall have furnished to your counsel such documents as such counsel may reasonably request for the purpose of enabling them to render such opinion. (f) At the date hereof and at each Closing Time if called for by the applicable Terms Agreement, the Company shall have furnished to each of Sale Prospectus or the Prospectusyou (or, with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) such further information and documents as you may have reasonably requested. (g) There shall not have occurred any change, or any amendment development involving a prospective change, involving currency exchange rates, exchange controls, taxation or supplement theretosimilar matters that in your respective judgments makes it impracticable or inadvisable to proceed with your solicitation of offers to purchase the Offered Securities denominated in the affected currency or currencies, or your purchase of such Offered Securities from the Company as principal; provided, however, that any such change or development shall not affect your respective obligations with respect to Offered Securities denominated in any currency not so affected. Your respective obligations to purchase Offered Securities pursuant to any Terms Agreement (or as contemplated by the last sentence of Section 3(b) hereof) will be subject to the following further conditions: (a) the rating assigned by any nationally recognized securities rating agency to any debt securities of the Company as of the date of the applicable Terms Agreement shall not have been lowered since that date nor shall any such organization have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any debt securities of the Company and (b) there shall not have come to your attention any facts that would cause you to believe that the Prospectus, at the time it was required to be delivered to a purchaser of the NotesOffered Securities, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading; and (3) subsequent to the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there shall not have been any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (b) At the Time of Delivery the Manager shall have received: (1) A certificate or certificates, dated as of such time, signed by the Chief Executive of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that 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 and that, subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus and, if applicable, the Time of Sale Prospectus with respect to the Notes, there has been no material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (2) An opinion, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion, with respect to the Corporation being duly constituted, the validity of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their opinion, Xxxxxxxx & Xxxxxxxx may rely on the opinions of the Mallesons Xxxxxxx Xxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by New South Wales and Australian law; (4) An opinion and negative assurance letter, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to such matters as the Manager receiving such opinion may reasonably request, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters; and (5) From the Auditor General of the State of New South Wales, or any successor independent auditor, a letter, dated as of such time, and delivered at such time, substantially in the form attached hereto as Annex A. (c) 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 or the Australian Stock Exchange; (ii) a general moratorium on commercial banking activities (A) in New York declared by either U.S. federal or New York State regulatory authorities or (B) in Australia declared by the Australian regulatory authorities or a material disruption in commercial banking or securities settlement or clearance systems in the United States or Australia; (iii) any outbreak or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any declaration of a national emergency or war by either of such countries, or any other calamity or crisis or materially adverse change in general economic, political or financial conditions having an effect on the U.S. or Australian financial markets; (iv) any downgrading in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse effect on the holders of the Notes, which in the case of any of the events described in clauses (i) through (iv) above, individually or in the aggregate, in the sole judgment of the Manager, makes it impracticable or inadvisable to proceed with the consummation of the purchase of Notes by the Underwriters for sale to others on the terms and in the manner contemplated in the Time of Sale Prospectus and the Prospectus, each as then amended or supplemented. (d) At the Time of Delivery, the Underwriters shall have been furnished with such documents and opinions as they may reasonably require in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Manager by notice to the Corporation at any time at or prior to the Time of Delivery and such termination shall be without liability of any party to any other party, except that the provisions of Section 5 hereof, the indemnity and contribution agreements set forth in Section 7 and 8 hereof, and the provisions of Section 10, 13 and 16 hereof shall remain in effect.

Appears in 1 contract

Samples: Distribution Agreement (Cendant Corp)

Conditions of Obligations. The obligations of each Underwriter hereunder Agent to solicit offers to purchase the Notes as agent of the Company, the obligation of any purchaser of Notes sold through such Agent as agent and the obligation of the Lead Agent to be delivered at the Time of Delivery purchase Notes as principal pursuant to any Terms Agreement will be subject at all times to the accuracy of the representations and warranties on the part of the Corporation Company herein and the Guarantor herein contained as of the date hereof and as of the Time of Delivery, to the accuracy of the statements of any duly authorized officer or official of the Corporation and the Guarantor Company's officers made in any certificate furnished pursuant to the provisions of Section 6(b)(1)hereof, to the performance and observance by the Corporation and the Guarantor Company of all their respective covenants and other obligations hereunder agreements herein contained on its part to be performed and observed and to the following further conditionsadditional conditions precedent: (1a) No stop order Stop Order or Material Adverse Change. (i) No Stop Order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under the 1933 Act or proceedings other applicable law, and no proceeding under the 1933 Act or the 1934 Act therefor shall have been initiated or threatened by the Commission, or, with respect to the filing of any Form 8-A under the 1934 Act, by any U.S. national securities exchange; (2) no Underwriter and all requests for additional information on the part of the Commission shall have been advised complied with or such requests shall have been otherwise satisfied; (ii) the rating assigned by the Corporation that the Registration Statement, the Time of Sale Prospectus any U.S. nationally recognized statistical rating organization to any debt securities or the Prospectus, or any amendment or supplement thereto, at the time it was required to be delivered to a purchaser preferred stock of the Notes, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light Company as of the circumstances existing at date of this Agreement shall not have been lowered between the trade date and the settlement date of any offering of Notes and no such timeagency shall have publicly announced since the execution of this Agreement that it has under surveillance or review, not misleadingwith possible negative implications, its rating of any of the debt securities or preferred stock of the Company; and (3iii) subsequent to since the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus Statement and the Final Prospectus, except as otherwise stated therein or contemplated thereby, there shall not have been any material adverse change in in, or any adverse development which materially affects, the financial positioncondition, results of operationoperations, business affairs or business prospects properties of the Corporation or Company and its subsidiaries considered as one enterprise, the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (b) At the Time of Delivery the Manager shall have received: (1) A certificate or certificates, dated as of such time, signed by the Chief Executive of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that 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 and that, subsequent to the respective dates as effect of which information is given in the Registration Statement, the Prospectus and, if applicable, the Time of Sale Prospectus with respect to the Notes, there has been no your reasonable judgment so material and adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (2) An opinion, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion, with respect to the Corporation being duly constituted, the validity of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their opinion, Xxxxxxxx & Xxxxxxxx may rely on the opinions of the Mallesons Xxxxxxx Xxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by New South Wales and Australian law; (4) An opinion and negative assurance letter, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to such matters as the Manager receiving such opinion may reasonably request, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters; and (5) From the Auditor General of the State of New South Wales, or any successor independent auditor, a letter, dated as of such time, and delivered at such time, substantially in the form attached hereto as Annex A. (c) 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 or the Australian Stock Exchange; (ii) a general moratorium on commercial banking activities (A) in New York declared by either U.S. federal or New York State regulatory authorities or (B) in Australia declared by the Australian regulatory authorities or a material disruption in commercial banking or securities settlement or clearance systems in the United States or Australia; (iii) any outbreak or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any declaration of a national emergency or war by either of such countries, or any other calamity or crisis or materially adverse change in general economic, political or financial conditions having an effect on the U.S. or Australian financial markets; (iv) any downgrading in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse effect on the holders of the Notes, which in the case of any of the events described in clauses (i) through (iv) above, individually or in the aggregate, in the sole judgment of the Manager, makes make it impracticable or inadvisable to proceed with the consummation public offering or the delivery of the purchase of Notes by the Underwriters for sale to others on the terms and in the manner contemplated in the Time of Sale Prospectus and the Final Prospectus, each as then amended or supplemented. (d) At the Time of Delivery, the Underwriters shall have been furnished with such documents and opinions as they may reasonably require in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Manager by notice to the Corporation at any time at or prior to the Time of Delivery and such termination shall be without liability of any party to any other party, except that the provisions of Section 5 hereof, the indemnity and contribution agreements set forth in Section 7 and 8 hereof, and the provisions of Section 10, 13 and 16 hereof shall remain in effect.

Appears in 1 contract

Samples: Distribution Agreement (Bear Stearns Companies Inc)

Conditions of Obligations. The obligations of each an Underwriter hereunder to purchase the Notes to be delivered at the Time of Delivery Securities identified on a Schedule will be subject to the continued accuracy of the representations and warranties on the part of the Corporation and the Guarantor herein Company contained as of the date hereof and as of the Time of Deliveryherein, to the accuracy of the statements of any duly authorized officer or official of the Corporation and the Guarantor Company's officers made in any certificate furnished pursuant to the provisions of Section 6(b)(1)hereof, to the performance and observance by the Corporation and the Guarantor Company of all their respective covenants and other obligations hereunder agreements contained herein and to the following further additional conditions: (1a) No stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under and no order shall have been issued by the Act Commission suspending or preventing the use of any Prospectus, and no proceedings therefor initiated for such purpose shall be pending before or threatened by the Commission; . (2b) no On or prior to the applicable Closing Date, the purchasing Underwriter shall have been advised by furnished such documents, certificates, accountants' letters and opinions as it may reasonably request for the Corporation purpose of enabling it or its counsel to determine the accuracy, completeness or satisfaction of any of the representations, warranties or conditions herein contained. (c) At each Closing Date, the purchasing Underwriter shall have received a certificate, dated such Closing Date, of the President, a Vice President, the General Manager, the Treasurer or the Controller of the Company to the effect that, to the best of such officer's knowledge, the conditions set forth in subsections (a) and (d) of this Section 5 have been satisfied, and as to the continued accuracy of the representations and warranties of the Company set forth herein. (d) No order suspending the sale of the Securities in any jurisdiction designated pursuant to subsection 3(i) hereof shall have been issued, and no proceeding for that purpose shall have been instituted or, to the knowledge of the purchasing Underwriter or the Company, shall be contemplated. (e) Subsequent to the date of the applicable Schedule and on or prior to the applicable Closing Date, there shall not have occurred (i) since the date of such Schedule or since the respective dates as of which information is given in the Registration Statement, any material adverse change in the Time condition, financial or otherwise, or in the earnings, business affairs or business prospects of Sale Prospectus the Company and its subsidiaries considered as one enterprise, whether or not arising in the Prospectusordinary course of business, or (ii) any material adverse change in the financial markets in the United States or, if such Securities are denominated and/or payable in, or indexed to, one or more foreign currencies, in the international financial markets, or any amendment outbreak or supplement theretoescalation of hostilities or other calamity or crisis or any change or development or event involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of such Underwriter(s), impracticable to market the Securities or enforce contracts for the sale of the Securities, or (iii) any suspension by the Commission or a national securities exchange of trading in any securities of the Company, or suspension or material limitation of trading generally on either the American Stock Exchange or the New York Stock Exchange, or the fixing of minimum or maximum prices for trading, or the requirement of maximum ranges for prices for securities by either of said exchanges or by order of the Commission or any other governmental authority, or a banking moratorium declared by either Federal or New York authorities, or a declaration of a banking moratorium by the relevant authorities in the country or countries of origin of any foreign currency or currencies in which the Securities are denominated or payable, or (iv) a lowering of the rating assigned by any NRSRO to any debt securities of the Company as of the date of any applicable Schedule since that date, or a public announcement by any such organization that it has under surveillance or review, with possible negative implications, its rating of any debt securities of the Company, or (v) any facts coming to such Underwriter's attention that would cause such Underwriter to believe that the Prospectus, at the time it was required to be delivered to a purchaser of the NotesSecurities, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time of such timedelivery, not misleading; and (3) subsequent to the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there shall not have been any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus;. (bf) At the Time of Delivery applicable Closing Date, the Manager purchasing Underwriter shall have received: (1) A certificate or certificatesreceived an opinion of counsel, dated as of such timeClosing Date, signed by the Chief Executive of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that 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 and that, subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus and, if applicable, the Time of Sale Prospectus with respect to the Notes, there has been no material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (2) An opinion, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion, with respect to the Corporation being duly constituted, the validity of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their opinion, Xxxxxxxx & Xxxxxxxx may rely on the opinions of the Mallesons Xxxxxxx Xxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by New South Wales and Australian law; (4) An opinion and negative assurance letter, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to such matters as the Manager receiving such opinion may reasonably request, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters; and (5) From the Auditor General of the State of New South Wales, or any successor independent auditor, a letter, dated as of such time, and delivered at such time, substantially in the form attached hereto as Annex A. (c) 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 or the Australian Stock Exchange; (ii) a general moratorium on commercial banking activities (A) in New York declared by either U.S. federal or New York State regulatory authorities or (B) in Australia declared by the Australian regulatory authorities or a material disruption in commercial banking or securities settlement or clearance systems in the United States or Australia; (iii) any outbreak or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any declaration of a national emergency or war by either of such countries, or any other calamity or crisis or materially adverse change in general economic, political or financial conditions having an effect on the U.S. or Australian financial markets; (iv) any downgrading in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse effect on the holders of the Notes, which in the case of any of the events described in clauses (i) through (iv) above, individually or in the aggregate, in the sole judgment of the Manager, makes it impracticable or inadvisable to proceed with the consummation of the purchase of Notes by the Underwriters for sale to others on the terms and in the manner contemplated in the Time of Sale Prospectus and the Prospectus, each as then amended or supplemented. (d) At the Time of Delivery, the Underwriters shall have been furnished with such documents and opinions as they may reasonably require in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Manager by notice to the Corporation at any time at or prior to the Time of Delivery and such termination shall be without liability of any party to any other party, except that the provisions of Section 5 6(f) hereof, the indemnity and contribution agreements set forth in Section 7 and 8 hereof, and the provisions of Section 10, 13 and 16 hereof shall remain in effect.

Appears in 1 contract

Samples: Underwriting Agreement (Paccar Financial Corp)

Conditions of Obligations. The Your several obligations of each Underwriter hereunder to solicit offers to purchase the Notes Offered Securities as Agent(s) and your obligations to be delivered at the Time of Delivery purchase Offered Securities pursuant to any Terms Agreement or otherwise will be subject to the accuracy of the representations and warranties on the part of the Corporation and the Guarantor herein contained as of the date hereof and as of the Time of DeliveryCompany herein, to the accuracy of the statements of any duly authorized officer or official of the Corporation and the Guarantor Company's officers made in any each certificate furnished pursuant to the provisions of Section 6(b)(1)hereof, to the performance and observance by the Corporation and the Guarantor Company of all their respective covenants and other obligations hereunder agreements herein contained on its part to be performed and observed and to the following further conditionsadditional conditions precedent: (1a) No stop At and subsequent to the date hereof and at each Closing Time no stop-order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under and remain outstanding and no proceedings for that purpose shall have been instituted or, to your knowledge or the Act knowledge of the Company, threatened or proceedings therefor initiated or threatened contemplated by the Commission; . (2b) At the date hereof and at each Closing Time if called for by the applicable Terms Agreement, each of you (or, with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) shall have received an opinion, dated, as applicable, either the date hereof or such Closing Time, of Piper & Marbury L.L.P., or other counsel for the Company acceptable to the Agents (or in the case of any Closing Time other than the date hereof, the opinion of the General Counsel or Assistant General Counsel of the Company), substantially identical to the proposed form of their opinion heretofore delivered to each of you. (i) At the date hereof and at each Closing Time, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus (except as set forth in or contemplated by the Registration Statement and the Prospectus), the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions not in the ordinary course of business, nor shall there have been any material decrease in the stockholders' equity or any material increase in the long-term debt of the Company or any material adverse change in the condition, financial or otherwise, or in the earnings, affairs or business prospects of the Company, whether or not arising in the ordinary course of business. (ii) At the date hereof and at each Closing Time if called for by the applicable Terms Agreement, each of you (or, with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) shall have received a certificate, dated, as applicable, the date hereof or such Closing Time, signed by the officers of the Company specified in Section 4(g), certifying that, to the best of their knowledge after reasonable investigation, the statements made in the immediately preceding paragraph (i) are accurate and to the effect that (A) no Underwriter stop- order suspending the effectiveness of the Registration Statement has been issued, and no proceedings for that purpose have been instituted or, to the knowledge of such officers, are threatened or contemplated by the Commission, (B) the Registration Statement and the Prospectus conform in all material respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations, (C) neither the Registration Statement nor the Prospectus contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the foregoing does not apply to (i) statements or omissions in the Registration Statement or the Prospectus made in reliance upon information furnished in writing to the Company by any of you or on your behalf or on behalf of any of the Trustees expressly for use therein or (ii) that part of the Registration Statement that constitutes the Statement of Eligibility under the Trust Indenture Act on Form T-1 of any Trustee, except statements or omissions in such Statement made in reliance upon information furnished in writing to such Trustee by or on behalf of the Company for use therein, and (D) the representations and warranties of the Company included in Sections 2(a) through 2(e) are, as of the Closing Time, accurate in all material respects and the Company has performed and observed all covenants and agreements herein contained on its part to be performed and observed prior to the Closing Time. (d) At the date hereof, and at each Closing Time if called for by the applicable Terms Agreement, each of you (or, with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) shall have been advised received a letter, dated as of the Closing Time, signed by KPMG Peat Marwick or other independent certified public accountant of national standing, substantially identical to the proposed form of such letter heretofore delivered to each of you. (e) At the date hereof and at each Closing Time if called for by the Corporation applicable Terms Agreement, each of you (or with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) shall have received an opinion, dated such date, of Milbank, Tweed, Xxxxxx & XxXxxx, or other counsel selected by the Agents, with respect to the Company, the Offered Securities, the Registration Statement, including the form of final prospectus included therein, this Agreement and the form and sufficiency of all proceedings taken in connection with the authorization, sale and delivery of the Offered Securities, all of which shall be satisfactory in all respects to you, and the Company shall have furnished to your counsel such documents as such counsel may reasonably request for the purpose of enabling them to render such opinion. (f) At the date hereof and at each Closing Time if called for by the applicable Terms Agreement, the Company shall have furnished to each of Sale Prospectus or the Prospectusyou (or, with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) such further information and documents as you may have reasonably requested. (g) There shall not have occurred any change, or any amendment development involving a prospective change, involving currency exchange rates, exchange controls, taxation or supplement theretosimilar matters that in your respective judgments makes it impracticable or inadvisable to proceed with your solicitation of offers to purchase the Offered Securities denominated in the affected currency or currencies, or your purchase of such Offered Securities from the Company as principal; provided, however, that any such change or development shall not affect your respective obligations with respect to Offered Securities denominated in any currency not so affected. Your respective obligations to purchase Offered Securities pursuant to any Terms Agreement (or as contemplated by the last sentence of Section 3(b) hereof) will be subject to the following further conditions: (a) the rating assigned by any nationally recognized securities rating agency to any debt securities of the Company as of the date of the applicable Terms Agreement shall not have been lowered since that date nor shall any such organization have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any debt securities of the Company and (b) there shall not have come to your attention any facts that would cause you to believe that the Prospectus, at the time it was required to be delivered to a purchaser of the NotesOffered Securities, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading; and (3) subsequent to the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there shall not have been any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (b) At the Time of Delivery the Manager shall have received: (1) A certificate or certificates, dated as of such time, signed by the Chief Executive of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that 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 and that, subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus and, if applicable, the Time of Sale Prospectus with respect to the Notes, there has been no material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (2) An opinion, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion, with respect to the Corporation being duly constituted, the validity of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their opinion, Xxxxxxxx & Xxxxxxxx may rely on the opinions of the Mallesons Xxxxxxx Xxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by New South Wales and Australian law; (4) An opinion and negative assurance letter, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to such matters as the Manager receiving such opinion may reasonably request, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters; and (5) From the Auditor General of the State of New South Wales, or any successor independent auditor, a letter, dated as of such time, and delivered at such time, substantially in the form attached hereto as Annex A. (c) 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 or the Australian Stock Exchange; (ii) a general moratorium on commercial banking activities (A) in New York declared by either U.S. federal or New York State regulatory authorities or (B) in Australia declared by the Australian regulatory authorities or a material disruption in commercial banking or securities settlement or clearance systems in the United States or Australia; (iii) any outbreak or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any declaration of a national emergency or war by either of such countries, or any other calamity or crisis or materially adverse change in general economic, political or financial conditions having an effect on the U.S. or Australian financial markets; (iv) any downgrading in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse effect on the holders of the Notes, which in the case of any of the events described in clauses (i) through (iv) above, individually or in the aggregate, in the sole judgment of the Manager, makes it impracticable or inadvisable to proceed with the consummation of the purchase of Notes by the Underwriters for sale to others on the terms and in the manner contemplated in the Time of Sale Prospectus and the Prospectus, each as then amended or supplemented. (d) At the Time of Delivery, the Underwriters shall have been furnished with such documents and opinions as they may reasonably require in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Manager by notice to the Corporation at any time at or prior to the Time of Delivery and such termination shall be without liability of any party to any other party, except that the provisions of Section 5 hereof, the indemnity and contribution agreements set forth in Section 7 and 8 hereof, and the provisions of Section 10, 13 and 16 hereof shall remain in effect.

Appears in 1 contract

Samples: Distribution Agreement (PHH Corp)

Conditions of Obligations. The obligations obligation of each Underwriter hereunder the Agents, as agents of the Company, under this Agreement to solicit offers to purchase the Notes Securities, as well as the obligation of each Agent to be delivered at the Time of Delivery will be purchase Securities pursuant to any Terms Agreement or otherwise, is subject to the accuracy of the representations and warranties on the part of the Corporation and the Guarantor herein Company contained as of the date hereof and as of the Time of Deliveryherein, to the accuracy of the statements of any duly authorized officer or official of the Corporation and the Guarantor Company’s officers made in any certificate furnished pursuant to the provisions of Section 6(b)(1)hereof to the extent then relevant, to the performance and observance by the Corporation and the Guarantor Company in all material respects of all their respective covenants and other its obligations hereunder hereunder, and to each of the following further additional terms and conditions: (1a) No stop order suspending the effectiveness of the Registration Statement Statement, or any part thereof thereof, nor any order directed to any document incorporated by reference in the Prospectus or the Disclosure Package shall have been issued under the Act or proceedings therefor and no stop order proceeding shall have been initiated or threatened by the Commission; (2) Commission and no Underwriter shall have been advised challenge by the Corporation that Commission shall be pending to the accuracy or adequacy of Registration Statement, the Time of Sale Prospectus or the Prospectus, Disclosure Package or any amendment or supplement thereto, at document incorporated by reference in the time it was required to be delivered to a purchaser foregoing documents; any request of the Notes, contained an untrue statement Commission for inclusion 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 existing at such time, not misleading; and (3) subsequent to the respective dates as of which additional information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there shall not have been any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (b) At the Time of Delivery the Manager shall have received: (1) A certificate or certificates, dated as of such time, signed by the Chief Executive of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that 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 and that, subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus and, if applicableor the Disclosure Package or otherwise shall have been withdrawn or complied with; and after the date of any Terms Agreement (and prior to the Settlement Date for the Securities referred to therein) the Company shall not have filed with the Commission any amendment or supplement to the Registration Statement, the Time of Sale Prospectus with respect to the Notes, there has been no material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus;Disclosure Package (or any document incorporated by reference in the foregoing documents) without the consent of the Agent or Agents party thereto. (2b) An opinionNo order suspending the sale of the Securities in any jurisdiction designated by an Agent pursuant to Section 3(1) hereof shall have been issued, and no proceeding for that purpose shall have been initiated or threatened. (c) The Agents shall not have discovered and disclosed to the Company that the Registration Statement, the Prospectus or the Disclosure Package, each as amended or supplemented, contains an untrue statement of a fact which, in the opinion of counsel for the Agents, is material or omits to state a 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. (d) On the Closing Date, the Agents shall have received from Hunton & Wxxxxxxx LLP, counsel for the Agents, such opinion and letter, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinionClosing Date, with respect to the Corporation being duly constitutedissuance and sale of the Securities, the validity of the Notes and the Guarantee of the Notes by the GuarantorIndenture, the Registration Statement, the ProspectusProspectus and the Disclosure Package, the Time of Sale Prospectus (if applicable) each as amended or supplemented, and other related matters as they the Agents may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may reasonably require, and the Corporation and the Guarantor Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their . (e) On the Closing Date, the Agents shall have received the opinion, Xxxxxxxx & Xxxxxxxx may rely on addressed to the opinions Agents and dated the Closing Date, of Rxxxxxx X. Xxxxxxx, Esq., General Counsel of the Mallesons Xxxxxxx Xxxxxx (or other counsel Company, in form and scope satisfactory to the Manager receiving such opinions) as Agents and their counsel, substantially to all matters governed by New South Wales and Australian law;the effect set forth in Exhibit D hereto. (4f) An opinion and negative assurance letterOn the Closing Date, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to Agents shall have received the Manager receiving such opinion and letter, with respect addressed to such matters as the Manager receiving such Agents and dated the Closing Date, of Hxxxx Lovells US LLP, counsel to the Company, which opinion may reasonably requestand letter shall be satisfactory in form and scope to counsel for the Agents, substantially to the effect set forth in Exhibit E-1 and the Corporation and the Guarantor Exhibit E-2 hereto. (g) The Company shall have furnished to the Agents on the Closing Date a certificate, dated the Closing Date, of its President, Chief Executive Officer, Vice President or Chief Financial Officer stating that: (i) the representations, warranties and agreements of the Company in Section 1 hereof are true and correct as of such counsel Closing Date; the Company has complied in all material respects with all its agreements contained herein; and the conditions set forth in Sections 5(a) and 5(b) hereof have been fulfilled, (ii) in his opinion, as of the effective date of the Registration Statement, the Registration Statement did not contain an untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, if the certificate is being delivered pursuant to a Terms Agreement (as hereafter defined), as of the Applicable Time, the Disclosure Package did not contain an untrue statement of a material fact and did not 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, and the Prospectus as of its date and as of the Closing Date did not contain an untrue statement of a material fact and did not 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, (iii) since the respective dates as of which information is given in the Registration Statement, the Prospectus and the Disclosure Package, as amended or supplemented, there has not been any material adverse change in the condition, financial or other, or earnings of the Company, whether or not arising from transactions in the ordinary course of business, (iv) since the effective date of the Registration Statement, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus but which has not been so set forth or incorporated by reference therein, (v) the Company has no material contingent obligations which are required to be disclosed in the Registration Statement, the Prospectus or the Disclosure Package and are not disclosed therein, (vi) no stop order suspending the effectiveness of the Registration Statement is in effect on such documents as they reasonably request Closing Date and no proceedings for the purpose issuance of enabling them such an order have been taken or to pass upon the knowledge of the Company are contemplated by the Commission on or prior to such matters; andClosing Date, (vii) there are no material legal proceedings to which the Company is a party or of which property of the Company is the subject which are required to be disclosed in the Registration Statement, the Prospectus or the Disclosure Package and are not disclosed therein and (viii) there are no material contracts to which the Company is a party which are required to be disclosed in the Registration Statement, the Prospectus or the Disclosure Package and are not disclosed therein. (5h) From KPMG LLP (or successor independent public accountants with respect to the Auditor General Company within the meaning of the State of New South WalesSecurities Act and the rules and regulations thereunder) shall have furnished to the Agents, at or any successor independent auditorprior to the Closing Date, a letter, addressed to the Agents and dated the Closing Date, confirming that they are independent public accountants with respect to the Company within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, substantially to the effect set forth in Exhibit F-1 hereto. (i) Deloitte and Touche LLP shall have furnished to the Agents, at or prior to the Closing Date, a letter, addressed to the Agents and dated the Closing Date, confirming that as of such timeOctober 15, 2013, the date that they completed their interim review procedures in connection with the Company’s interim financial statements on Form 10-Q as of and delivered at such timefor the three months ended August 31, 2013, they were independent public accountants with respect to the Company within the meaning of the Securities Act and were in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulations S-X of the Commission, substantially to the effect set forth in the form attached hereto as Annex A.Exhibit F-2 hereto. (cj) There shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities of the Company or generally on the The New York Stock Exchange or the Australian Stock Exchange; , (ii) a general banking moratorium on commercial banking activities (A) in New York declared by either U.S. federal Federal or New York State regulatory authorities state authorities, (iii) any outbreak of hostilities involving the United States, any escalation of hostilities involving the United States, any attack on the United States or any act of terrorism in which the United States is involved, (Biv) in Australia declared by the Australian regulatory authorities or a material any major disruption in commercial banking or the settlement of securities settlement or clearance systems in the United States or Australia; (iii) any outbreak other relevant jurisdiction or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any a declaration of a national emergency or war by either of the United States or (v) such countries, or any other calamity or crisis or materially a material adverse change in general economic, political or financial conditions having an domestically or internationally (or the effect of international conditions on the U.S. or Australian financial markets; (iv) any downgrading markets in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse the effect on the holders of the Notes, which conditions in the United States on international financial markets shall be such) the effect of which is, in any case of any of the events described in clauses (i) through clause (iv) above, individually or in the aggregate(v), in the sole judgment of the ManagerPurchasing Agent, makes to make it impracticable or inadvisable to proceed with the consummation solicitation of offers to purchase or the purchase or delivery of the purchase of Notes by the Underwriters for sale to others Securities on the terms and in the manner contemplated in the Time Prospectus; provided, however, that in the event that any Agent agrees to purchase Securities as a principal (whether pursuant to a Terms Agreement or otherwise) there shall not have occurred any of Sale Prospectus and the Prospectus, each as then amended or supplementedforegoing subsequent to the date of such agreement. (dk) At Prior to the Time of DeliveryClosing Date, the Underwriters Company shall have been furnished to the Agents and to Hunton & Wxxxxxxx LLP, counsel to the Agents, such further certificates and documents as the Agents or counsel to the Agents may have reasonably requested prior to the Closing Date. (l) Subsequent to the execution of any Terms Agreement and prior to the Settlement Date: (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization”, as that term is defined by the Commission in Section 3(a)(62) under the Exchange Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, with such documents and opinions as they may reasonably require in order to evidence the accuracy and completeness possible negative implications, its rating of any of the representations and warranties, or the fulfillment of Company’s debt securities. If any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition conditions specified in this Section 6 5 shall not have been fulfilled when and as required to be fulfilled, this Agreement (or, at the option of any Agent, acting as principal, any applicable Terms Agreement) and all obligations of any Agent hereunder (or under any applicable Terms Agreement) may be terminated canceled by the Manager by notice any such Agent, insofar as this Agreement relates to such Agent at any time. Notice of such cancellation shall be given to the Corporation at any time at Company in writing, or prior to the Time of Delivery and such termination shall be without liability of any party to any other partyby facsimile, except that the telephone or telex confirmed in writing. The provisions of Section 5 hereofSections 3(c), the indemnity and contribution agreements set forth in Section 7 and 8 hereof3(h), and the provisions of Section 104, 13 7, 8, 9, 13, 14 and 16 hereof shall remain survive any such cancellation. All opinions, letters, evidence and certificates mentioned above or elsewhere in effectthis Agreement shall be deemed to be in compliance with the provisions hereof only if they are on the date of delivery in the form and scope reasonably satisfactory to counsel for the Agents.

Appears in 1 contract

Samples: Agency Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)

Conditions of Obligations. The obligations obligation of each Underwriter hereunder Agent, as agent of NIB, under this Agreement at any time to solicit offers to purchase the Notes to be delivered at the Time of Delivery will be is subject to the accuracy accuracy, on the date hereof, on each Representation Date and on the date of each such solicitation, of the representations and warranties on the part of the Corporation and the Guarantor herein contained as of the date hereof and as of the Time of DeliveryNIB herein, to the accuracy accuracy, on each such date, of the statements of any duly authorized officer or official of the Corporation and the Guarantor NIB’s officers made in any certificate furnished pursuant to the provisions of Section 6(b)(1)hereof, to the performance and observance performance, on or prior to such date, by the Corporation and the Guarantor NIB of all their respective covenants and other its obligations hereunder hereunder, and to each of the following further conditionsadditional conditions precedent: (1a) No If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued under and no proceedings for that purpose shall have been instituted or, to the Act knowledge of NIB or proceedings therefor initiated or threatened such Agent, shall be contemplated by the Commission; . (2b) no Underwriter shall have been advised by the Corporation that Neither the Registration Statement, the Time of Sale Prospectus or Statement nor the Prospectus, as amended or supplemented as of any amendment Representation Date or supplement theretodate of such solicitation, at as the time it was case may be, shall contain an untrue statement of fact that, in the opinion of the Agents, is material or omits to state a fact that, in the opinion of the Agents, is material and is required to be stated therein or is necessary to make the statements therein not misleading. (c) At the Closing Date, the Agents shall have received an opinion, dated the Closing Date, of the General Counsel or Senior Counsel of NIB to the effect that: (i) The Agreement Regarding the Establishment of NIB dated December 4, 1975 among the Kingdom of Denmark, the Republic of Finland, the Republic of Iceland, the Kingdom of Norway and the Kingdom of Sweden (the “Member countries”), pursuant to which NIB was established, including the Statutes of NIB, as amended (the “Statutes”) attached thereto, has been duly executed and ratified by all the Member countries and constitutes a legally binding obligation of the Member countries; (ii) The Fiscal Agency Agreement has been duly authorized, executed and delivered by NIB and constitutes the valid and legally binding obligation of NIB in accordance with its terms; the Notes have been duly authorized by NIB in accordance with the Statutes; when the terms of the Notes have been established in accordance with the Fiscal Agency Agreement and the Notes have been executed, authenticated, issued and delivered in accordance with the Fiscal Agency Agreement and this Agreement and paid for by the purchasers thereof, the Notes will constitute valid, legally binding and direct and unconditional general obligations of NIB in accordance with their terms, for the payment and performance of which the full faith and credit of NIB is pledged, and the Notes will be entitled to a purchaser the benefit of the Fiscal Agency Agreement; and upon the issuance of the Notes, contained an the obligations of NIB evidenced thereby will constitute direct, unconditional and unsecured obligations of NIB ranking pari passu without any preference among themselves and equally with all other unsecured indebtedness (other than subordinated indebtedness) of NIB from time to time outstanding; (iii) The Registration Statement and its filing with the Commission have been duly authorized by and on behalf of NIB, and the Registration Statement has been executed by and on behalf of NIB; and the information in the Registration Statement stated on the authority of the President of NIB has been stated by him in his official capacity as President thereunto duly authorized by NIB; (iv) All matters relating to the Agreement referred to in paragraph (i) above, the Statutes and the respective laws of each of the Member countries set forth in the Registration Statement as of the effective date thereof, as of the date of the Prospectus, as of the date of this Agreement and as of the date of such opinion are correctly set forth therein; and such General Counsel or Senior Counsel has no reason to believe that the Registration Statement or the Prospectus contains any untrue statement of a material fact or omitted omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in therein not misleading (except for the light of the circumstances existing at such time, not misleading; financial statements and (3) subsequent to the respective dates as of which information is given schedules and other financial data included in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there shall as to which such General Counsel or Senior Counsel need not have been express any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectusopinion); (bv) NIB has full power and authority to authorize, issue and sell the Notes as contemplated by this Agreement, and to perform and comply with the terms and provisions of the Notes, of this Agreement and of the Fiscal Agency Agreement; (vi) This Agreement has been duly authorized, executed and delivered by NIB; (vii) All authorizations, approvals and consents from all governmental authorities in each of the Member countries that are necessary for the execution and delivery of this Agreement, the execution and delivery of the Fiscal Agency Agreement, the execution, issuance, sale and delivery of the Notes hereunder and thereunder and the performance by NIB of the covenants contained in the Notes have been obtained; (viii) Under the respective laws of each of the Member countries, NIB would not be entitled to plead, or cause to be pleaded on its behalf, sovereign immunity from the jurisdiction of the courts of any of such Member countries in respect of any action arising out of or relating to its obligations under this Agreement, the Fiscal Agency Agreement or the Notes and such courts would be entitled to assume jurisdiction in respect of such actions; and (ix) There are no stamp or similar taxes under the respective laws of any of the Member countries payable in connection with the issuance of the Notes. Insofar as the opinion required by this paragraph (c) involves the laws of the United States or any jurisdiction thereof, it may be given in reliance upon the opinion required by paragraph (f) of this Section 5 and, insofar as such opinion involves the laws of any other jurisdiction, it may be given in reliance upon the opinion of counsel satisfactory to such General Counsel or Senior Counsel. (d) At the Time of Delivery Closing Date, the Manager Agents shall have received: (1) A certificate or certificatesreceived a certificate, dated as of such timethe Closing Date, signed by the Chief Executive of the Corporation in respect President or the principal financial or accounting officer of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, NIB in which such personsofficer, to the best of his or her knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Corporation and the Guarantor NIB in this Agreement are true and correctcorrect in all material respects, that the Corporation and the Guarantor have (ii) NIB has complied with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to such timethe Closing Date, that and (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 or, to such officer’s knowledge, are contemplated by the Commission Commission, and that, (iv) subsequent to the respective dates as date of which information is given the most recent financial statements in the Registration Statement, the Prospectus and, if applicable, the Time of Sale Prospectus with respect to the NotesProspectus, there has been no material adverse change in the financial position, position or results of operationoperations of NIB, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or as described in such certificate. (e) At the Closing Date, the Agents shall have received a letter, dated the Closing Date, of a duly appointed independent auditor of NIB, confirming that he is an independent public accountant with respect to NIB and stating in effect that on the basis of procedures (but not an examination in accordance with generally accepted auditing standards in the Member countries) consisting of reading all available minutes of the meetings of the Board of Directors of NIB through a specified date not more than seven calendar days prior to the date of such letter, a reading of the latest available unaudited interim financial statements of NIB and making inquiries of certain officers of NIB who have responsibility for financial and accounting matters regarding the specific items for which representations are requested below: (i) Nothing came to his attention as a result of the foregoing procedures that caused him to believe that at a specified date not more than seven calendar days prior to the date of such letter: (A) the unaudited financial statements, if any, included in the Prospectus are not fairly presented in conformity with generally accepted accounting principles in the Member countries applied on a basis substantially consistent with that of the audited financial statements included in the Prospectus; (2B) An opinionthe unaudited capsule information, if any, included in the Prospectus does not agree with the amounts set forth in the unaudited financial statements from which it was derived or was not determined on a basis substantially consistent with that of the audited financial statements included in the Prospectus; (C) there was any change in the capital or borrowings of NIB as compared with amounts shown on the latest balance sheet included in the Prospectus, except for changes which the Prospectus discloses have occurred or may occur or in the respective aggregate amounts set forth in such letter; or (D) there was any loss of the principal of or interest on any loan due to NIB, except in all instances for changes or losses which the Prospectus discloses have occurred or may occur or which are set forth in such letter; (ii) Nothing has come to his attention as a result of the foregoing procedures that caused him to believe that at the date of the latest unaudited interim financial statements of NIB there was any decrease in the total assets of NIB as compared with the amounts shown in the latest balance sheet included in the Prospectus; and (iii) He has compared the monetary amounts (or percentages derived from such monetary amounts) and other financial information contained in the Prospectus under the captions “Introduction—Nordic Investment Bank”, “Capitalization and Reserves”, “Funded Debt”, “Short-Term Financing and Liquidity Management”, “Operations of NIB”, “Schedule of Annual Amortization of Funded Debt Outstanding” and “Summary Schedule of Funded Debt” and in the Schedule of Funded Debt attached as Exhibit A to the Registration Statement (in each case to the extent that such monetary amounts, percentages and other financial information are derived from the general accounting records of NIB subject to the internal controls of NIB’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and has found such monetary amounts, percentages and other financial information to be in agreement with such results. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) The Agents shall have received from Cleary, Gottlieb, Xxxxx & Xxxxxxxx, counsel for the Agents, such opinion or opinions, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinionClosing Date, with respect to the Corporation being duly constituted, the validity of the Notes and the Guarantee of the Notes by the GuarantorNotes, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require, and the Corporation and the Guarantor NIB shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their . In rendering such opinion, Xxxxxxxx Cleary, Gottlieb, Xxxxx & Xxxxxxxx may rely on the opinions of the Mallesons Xxxxxxx Xxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by New South Wales and Australian law; (4) An the respective laws of each of the Member countries upon the opinion and negative assurance letter, dated as of the General Counsel or Senior Counsel of NIB referred to above. NIB will furnish the Agents with such conformed copies of such timeopinions, of Skaddencertificates, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion letters and letter, with respect to such matters as the Manager receiving such opinion may reasonably request, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters; and (5) From the Auditor General of the State of New South Wales, or any successor independent auditor, a letter, dated as of such time, and delivered at such time, substantially in the form attached hereto as Annex A. (c) 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 or the Australian Stock Exchange; (ii) a general moratorium on commercial banking activities (A) in New York declared by either U.S. federal or New York State regulatory authorities or (B) in Australia declared by the Australian regulatory authorities or a material disruption in commercial banking or securities settlement or clearance systems in the United States or Australia; (iii) any outbreak or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any declaration of a national emergency or war by either of such countries, or any other calamity or crisis or materially adverse change in general economic, political or financial conditions having an effect on the U.S. or Australian financial markets; (iv) any downgrading in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse effect on the holders of the Notes, which in the case of any of the events described in clauses (i) through (iv) above, individually or in the aggregate, in the sole judgment of the Manager, makes it impracticable or inadvisable to proceed with the consummation of the purchase of Notes by the Underwriters for sale to others on the terms and in the manner contemplated in the Time of Sale Prospectus and the Prospectus, each as then amended or supplementedrequest. (d) At the Time of Delivery, the Underwriters shall have been furnished with such documents and opinions as they may reasonably require in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Manager by notice to the Corporation at any time at or prior to the Time of Delivery and such termination shall be without liability of any party to any other party, except that the provisions of Section 5 hereof, the indemnity and contribution agreements set forth in Section 7 and 8 hereof, and the provisions of Section 10, 13 and 16 hereof shall remain in effect.

Appears in 1 contract

Samples: Selling Agency Agreement (Nordic Investment Bank)

Conditions of Obligations. The obligations obligation of each Underwriter hereunder the Agents, as agents of the Company, under this Agreement to solicit offers to purchase the Notes, the obligation of any person who has agreed to purchase Notes to be delivered at make payment for and take delivery of Notes, and the Time obligation of Delivery will be any Agent to purchase Notes pursuant to any Purchase Agreement, is subject to the accuracy accuracy, on each Representation Date, of the representations and warranties on the part of the Corporation and the Guarantor herein Company contained as of the date hereof and as of the Time of Deliveryherein, to the accuracy of the statements of any duly authorized officer or official of the Corporation and the Guarantor Company's officers made in any certificate furnished pursuant to the provisions of Section 6(b)(1)hereof, to the performance and observance by the Corporation and the Guarantor Company of all their respective covenants and other its obligations hereunder hereunder, and to each of the following further additional terms and conditions: (1a) No The Prospectus as amended or supplemented (including the Pricing Supplement) with respect to such Notes 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. The Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under the Act or proceedings therefor issued, and no proceeding for that purpose shall have been initiated or threatened by the Commission; (2) no Underwriter and any request of the Commission for inclusion of additional information in the Registration Statement or the Prospectus or otherwise shall have been advised by complied with to the Corporation reasonable satisfaction of the Agents. (b) None of the Agents shall have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement, the Time of Sale Prospectus or the Prospectus, Statement or any amendment or supplement thereto, at the time it was required to be delivered to a purchaser of the Notes, contained Prospectus contains an untrue statement of a fact which, in the opinion of counsel for the Agents, is material fact or omitted omits to state a any fact which, in the opinion of such counsel, is material fact and is required to be stated therein or is necessary in order to make the statements therein, in the light of the circumstances existing at such time, therein not misleading; . (c) All corporate proceedings and (3) subsequent other legal matters incident to the respective dates as authorization, form and validity of which information is given in each of this Agreement, any applicable Purchase Agreement, the Indenture and the Notes (the "Transaction Documents") and the Registration Statement, each Prospectus, and all other legal matters relating to the Time of Sale Prospectus Transaction Documents and the Prospectustransactions contemplated thereby, shall be reasonably satisfactory to the Agents, and the Company shall have furnished to the Agents all documents and information that they or their counsel may reasonably request to enable them to pass upon such matters. (d) At the Closing Date, there shall not have been any material adverse change issued and on each Representation Date there shall be in the financial position, results of operation, business affairs or business prospects full force and effect orders of the Corporation or North Carolina Utilities Commission and the financial, political or economic conditions or South Carolina Public Service Commission authorizing the financial or economic prospects issuance and sale of the Guarantor except Notes, none of which shall contain any provision unacceptable to the Agents by reason of its being materially adverse to the Company. (e) Hunton & Williams shall have furnished to the Agents their written opinion, as coxxxxx xx the Company, addressed to the Agents and dated the Closing Date, in form and substance reasonably satisfactory to the Agents, substantially to the effect set forth in or contemplated by the Time of Sale Prospectus or the Prospectus;Annex I hereto. (bf) At William D. Johnson, Esq., Senior Vice President and Corporate Secretary xx xxx Xxxxxxx xxxll have furnished to the Time of Delivery Agents, his written opinion, as counsel for the Manager shall have received: (1) A certificate or certificatesCompany, addressed to the Agents and dated as of such time, signed by the Chief Executive of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the GuarantorClosing Date, in which such persons, shall state that the representations form and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that 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 and that, subsequent substance reasonably satisfactory to the respective dates as of which information is given in the Registration Statement, the Prospectus and, if applicable, the Time of Sale Prospectus with respect Agents substantially to the Notes, there has been no material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as effect set forth in or contemplated by the Time of Sale Prospectus or the Prospectus;Annex II hereto. (2g) An opinionNelson, dated as of such timeMullins Riley & Scarborough, of Mallesons Xxxxxxx XxxxxxL.L.P., Australian shall have furnished to the Xxxxxs, xxxxx xxxxxxn oxxxxxx, xx counsel to the Corporation Company, addressed to the Agents and dated the GuarantorClosing Date, or such other counsel in form and substance reasonably satisfactory to the Manager receiving Agents substantially to the effect set forth in Annex III hereto. (h) The Agents shall have received from Simpson Thacher & Bartlett and Winthrop, Stimson Putnam and Roberts, eacx xxxxxxx xxx xhe Xxxxxx, such opinionopinion or xxxxxxnx, xxxed thx Xxxxxng Date, with respect to the Corporation being duly constituted, the validity of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related such matters as they the Agents may require with respect to matters governed by New South Wales and Australian lawreasonably require, and the Corporation and the Guarantor Company shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their opinion, Xxxxxxxx & Xxxxxxxx may rely on the opinions of the Mallesons Xxxxxxx Xxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by New South Wales and Australian law; (4) An opinion and negative assurance letter, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to such matters as the Manager receiving such opinion may reasonably request, and the Corporation and the Guarantor shall have furnished to such counsel such documents information as they reasonably request for the purpose of enabling them to pass upon such matters; and. (5i) From The Company shall have furnished to the Auditor General Agents a letter (the "Comfort Letter") of Deloitte & Touche LLP, addressed to the Agents and dated the Closing Date, in form and substance satisfactory to the Agents, containing statements and information of the State type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus. (j) The Company shall have furnished to the Agents a certificate, dated the Closing Date, of New South Walesits chairman, president or a vice president and its chief financial officer or treasurer stating that as of the Closing Date, the representations and warranties of the Company in this Agreement are true and correct in all material respects, the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder on or prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the best of such officer's knowledge, are contemplated by the Commission, and subsequent to the date of the most recent financial statements contained or incorporated by reference in the Prospectus, there has been no material adverse change in the financial position or results of operations of the Company and its subsidiaries, taken as a whole, or any successor independent auditorchange, or any development involving a letterprospective material adverse change, dated in or affecting the condition (financial or otherwise), results of operations or business of the Company and its subsidiaries taken as of a whole, except as set forth in the Prospectus. (k) If any event shall have occurred on or prior to the Closing Date that requires the Company to prepare an amendment or supplement to the Prospectus, such timeamendment or supplement shall have been prepared, the Agents shall have been given a reasonable opportunity to comment thereon, and copies thereof shall have been delivered at such time, substantially to the Agents reasonably in advance of the form attached hereto as Annex A.Closing Date. (ci) There shall not have been any change in the capital stock or long-term debt or any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), results of operations or business of the Company and its subsidiaries taken as a whole, the effect of which, in any such case described above, is, in the judgment of the applicable Agent, so material and adverse as to make it impracticable or inadvisable to proceed with the offer and sale of the Notes on the terms and in the manner contemplated by the Prospectus (exclusive of any supplement thereto), (ii) no action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency or body which would prevent the issuance or sale of the Notes; 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 Notes, (iii) there shall not have occurred after the date of this Agreement (X) any downgrading in the rating accorded the Notes or any of the Company's other debt securities or preferred stock by any "nationally recognized statistical rating organization", as such term is defined by the Commission for purposes of Rule 436(g)(2) of the Rules and Regulations and (Y) any public announcement by any such organization that it has under surveillance or review (other than an announcement with positive implications of a possible upgrading), its rating of the Notes or any of the Company's other debt securities or preferred stock, and (iv) there shall have not occurred any of the following: (iA) a suspension or material limitation in trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the Australian Stock Exchange; over-the-counter market shall have been suspended or limited, or minimum prices shall have been established on any such exchange or market by the Commission, by any such exchange or by any other regulatory body or governmental authority having jurisdiction, or trading in any securities of the Company on any exchange or in the over-the-counter market shall have been suspended or (iiB) a general any moratorium on commercial banking activities (A) in New York shall have been declared by either U.S. federal or New York State regulatory state authorities or (BC) in Australia declared by the Australian regulatory authorities or a material disruption in commercial banking or securities settlement or clearance systems in the United States or Australia; (iii) any an outbreak or escalation of hostilities, other insurrections hostilities or armed conflict in which a declaration by the United States of America or the Commonwealth of Australia is involved or any declaration of a national emergency or war by either of such countries, or any other calamity or crisis or materially (D) a material adverse change in general economic, political or financial conditions having an (or the effect of international conditions on the U.S. or Australian financial markets; (iv) any downgrading markets in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably shall be expected to have a material adverse such) the effect on the holders of the Noteswhich, which in the case of any of the events described in clauses this clause (iC) through or (iv) aboveD), individually or in the aggregateis, in the sole judgment of the Managerapplicable Agent, makes so material and adverse as to make it impracticable or inadvisable to proceed with the consummation public offering or the sale or the delivery of the purchase of Notes by the Underwriters for sale to others on the terms and in the manner contemplated by this Agreement and in the Time Prospectus. For purposes of Sale Prospectus this Section 4(1), it is understood that with respect to any person who has agreed to purchase Notes as a result of an offer to purchase solicited by an Agent (i) the judgment of such person shall be submitted for the respective judgments referred to herein of the applicable Agent, and the Prospectus, each as then amended (ii) such Agent shall have no duty or supplementedobligation whatsoever to exercise such judgment or opinion on behalf of any such person. (dm) At Prior to the Time of DeliveryClosing Date, the Underwriters Company shall have been furnished with to the Agents such further information, certificates and documents and opinions as they the Agents or counsel to the Agents may reasonably require request. All opinions, letters, evidence and certificates mentioned above or elsewhere in order this Agreement shall be deemed to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor be in connection compliance with the issuance and sale of the Notes as herein contemplated shall be satisfactory provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Manager by notice to the Corporation at any time at or prior to the Time of Delivery and such termination shall be without liability of any party to any other party, except that the provisions of Section 5 hereof, the indemnity and contribution agreements set forth in Section 7 and 8 hereof, and the provisions of Section 10, 13 and 16 hereof shall remain in effectAgents.

Appears in 1 contract

Samples: Distribution Agreement (Carolina Power & Light Co)

Conditions of Obligations. The Your obligations of each Underwriter hereunder to purchase the Notes to be delivered at the Time of Delivery will shall be subject to the accuracy of the representations and warranties on the part of the Corporation and the Guarantor herein Company contained as of the date hereof and as of the Time of Deliveryin Section 1 hereof, to the accuracy of the statements of any duly authorized officer or official of the Corporation and the Guarantor Company made in any certificate furnished pursuant to the provisions of Section 6(b)(1)hereof, to the performance and observance by the Corporation Company of its covenants, agreements and the Guarantor of all their respective covenants obligations contained in Sections 3 and other obligations hereunder 5 hereof, and to the following further additional conditions: (1a) No stop order suspending the effectiveness of the The Registration Statement or any part thereof shall have been issued under become effective not later than 5:00 p.m., Eastern Standard Time, on the Act day following the date of this Agreement, or proceedings therefor initiated or threatened by such later time and date as you and the Commission; (2) no Underwriter Company shall have been advised by the Corporation that the Registration Statement, the Time of Sale Prospectus or the Prospectus, or any amendment or supplement thereto, at the time it was required to be delivered to a purchaser of the Notes, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleadingagreed; and (3) subsequent to the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there shall not have been any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (b) At the Time of Delivery the Manager shall have received: (1) A certificate or certificates, dated as of such time, signed by the Chief Executive of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that no stop order suspending the effectiveness of the Registration Statement or any part thereof has shall have been issued and by the Commission and, to the best knowledge of the Company or you, no proceedings for that purpose shall have been instituted or are contemplated by the Commission and thatinstituted, subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus and, if applicable, the Time of Sale Prospectus with respect to the Notes, there has been no material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in threatened or contemplated by the Time Commission; and any request by the Commission for additional information (to be included in the Registration Statement or Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of Sale Prospectus you or your counsel. (b) You shall not have advised the Company that the Registration Statement or the Prospectus; (2) An opinion, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion, with respect to the Corporation being duly constituted, the validity of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their opinion, Xxxxxxxx & Xxxxxxxx may rely on the opinions of the Mallesons Xxxxxxx Xxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by New South Wales and Australian law; (4) An opinion and negative assurance letter, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to such matters as the Manager receiving such opinion may reasonably request, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters; and (5) From the Auditor General of the State of New South Wales, or any successor independent auditoramendment or any supplement thereto, a letter, dated as of such time, and delivered at such time, substantially in the form attached hereto as Annex A.reasonable opinion of you or your counsel, contains any untrue statement of fact which is material, or omits to state a fact which 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 any Any request of the following: (i) a suspension or material limitation Commission for inclusion of additional information in trading in securities generally on the New York Stock Exchange Registration Statement or the Australian Stock Exchange; (ii) a general moratorium on commercial banking activities (A) Prospectus or otherwise shall have been complied with in New York declared by either U.S. federal or New York State regulatory authorities or (B) in Australia declared by the Australian regulatory authorities or a all material disruption in commercial banking or securities settlement or clearance systems in the United States or Australia; (iii) any outbreak or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any declaration of a national emergency or war by either of such countries, or any other calamity or crisis or materially adverse change in general economic, political or financial conditions having an effect on the U.S. or Australian financial markets; (iv) any downgrading in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse effect on the holders of the Notes, which in the case of any of the events described in clauses (i) through (iv) above, individually or in the aggregate, in the sole judgment of the Manager, makes it impracticable or inadvisable to proceed with the consummation of the purchase of Notes by the Underwriters for sale to others on the terms and in the manner contemplated in the Time of Sale Prospectus and the Prospectus, each as then amended or supplementedrespects. (d) At The Company shall not have filed with the Time of Delivery, Commission the Underwriters shall have been furnished with such documents and opinions as they may reasonably require in order Prospectus or any amendment or supplement to evidence the accuracy and completeness of any Registration Statement or the Prospectus without consent of the representations and warrantiesDealer Manager, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition specified in this Section 6 which consent shall not have been fulfilled when unreasonable withheld or delayed. (e) The Dealer Manager shall not have discovered and as required to be fulfilled, this Agreement may be terminated by the Manager by notice disclosed to the Corporation at any time at Company, on or prior to the Time date of Delivery and such termination shall be without liability of any party to any other partythis Agreement, except that the provisions Registration Statement or the Prospectus or any amendment or supplement to the Registration Statement or the Prospectus contains an untrue statement of Section 5 hereofa fact that, in the indemnity reasonable opinion of the Dealer Manager, is material or omits to state a fact that, in the reasonable opinion of the Dealer Manager, is material and contribution agreements set forth is required to be stated therein or is necessary to make the statements therein not misleading. (f) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement and the Rights and the form of the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated by this Agreement are reasonably satisfactory in Section 7 all material respects to the Dealer Manager and 8 hereofits counsel, and the provisions Company has furnished to the Dealer Manager and such counsel all documents and information that they may reasonably request to enable them to pass upon those matters. (g) Butzel Long, as counsel to the Company, has furnished to the Dealer Manager on the date of Section 10this Agreement their opinion dated the date of this Agreement, 13 and 16 hereof shall remain addressed to the Manager, to the effect set out in effectExhibit B to this Agreement. (h) Dykxxx Xxsxxxx XXLC, as counsel to the Dealer Manager, has furnished to the Dealer Manager on the date of this Agreement their opinion dated the date of this Agreement, and addressed to the Manager, to the effect set out in Exhibit C to this Agreement. (i) The Company has furnished to the Dealer Manager on the date of this Agreement a certificate, dated the date of this Agreement, of its President and its Chief Financial Officer stating the information specified in Exhibit D to this Agreement. (j) Plaxxx Xxrxx xxs furnished to the Dealer Manager on the date of this Agreement a letter dated the date of this Agreement, and addressed to the Dealer Manager, to the effect set out in Exhibit E to this Agreement. (k) The shares of Common Stock issuable upon purchase of the Units and exercise of the Warrants have been listed on the applicable exchange.

Appears in 1 contract

Samples: Dealer Manager Agreement (Michigan Community Bancorp LTD)

Conditions of Obligations. The obligations obligation of each Underwriter hereunder Agent, whether acting as agent of the Issuer or as principal under this Agreement, at any time to solicit offers to purchase the Notes to be delivered at the Time of Delivery will be Securities is subject to the accuracy accuracy, on the date hereof, on the Closing Date, on the date of each such solicitation, and at each of the times of acceptance and of delivery referred to in Section 6(a) hereof and at each Representation Date (as defined in Section 6(b)), of the representations and warranties on the part of the Corporation and the Guarantor herein contained as of the date hereof and as of the Time of DeliveryIssuer herein, to the accuracy accuracy, on each such date, of the statements of any duly authorized officer or official of the Corporation and the Guarantor made Issuer's officers in any certificate furnished certificates made pursuant to the provisions of Section 6(b)(1)hereof, to the performance and observance performance, on or prior to each such date, by the Corporation and the Guarantor Issuer of all their respective covenants and other its obligations hereunder hereunder, and to each of the following further conditionsadditional conditions precedent: (1a) No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued under and no proceedings for that purpose shall have been instituted or, to the Act knowledge of the Issuer or proceedings therefor initiated or threatened any Agent, shall be contemplated by the Commission. (b) The Prospectus, as amended or supplemented as of the Closing Date, the date of such solicitation or any Representation Date, shall not 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 any 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 between each trade and settlement date (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Issuer or its subsidiaries which, in the judgment of such Agent, materially impairs the investment quality of the Securities; (2ii) no Underwriter any downgrading in the rating of the Issuer's debt securities or public announcement that such debt securities are under surveillance or review, with possible negative implications, by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Issuer on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by Federal or New York authorities; or (v) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of such Agent, 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, Securities. (d) At the Closing Date, the Agents shall have received: (i) the opinion of the General Counsel of the Issuer (or any Assistant General Counsel, Associate General Counsel, or other internal Counsel of or representing the Issuer having knowledge of and competence in securities or other financial matters; the "Issuer Counsel"), or, at the election of the Issuer, the opinion of Cravath, Swaine & Xxxxx, outside counsel for the Issuer, dated the Closing Date, to the effect that: (A) the Issuer (x) has been advised duly incorporated and is validly existing as a corporation in good standing under the laws of the State of New York, with full corporate power and authority to own its properties and conduct its business as described in the Prospectus and (y) is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction within the United States which requires such qualification wherein it owns or leases material properties or conducts material business where such failure so to qualify may have a material adverse effect on the financial condition, earnings, business or properties of the Issuer; (B) to the knowledge of opining counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Issuer or any of its subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements in the Prospectus describing the terms of the Securities and the provisions of the Indenture fairly summarize the matters therein described; and (C) none of the issue and sale of the Securities, the consummation of any other of the transactions contemplated herein or the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under, (x) the charter or by-laws of the Issuer; (y) the terms of any indenture or other agreement or instrument known to such counsel and to which the Issuer or any of its subsidiaries is a party or bound, or (z) any order or regulation known to such counsel to be applicable to the Issuer or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Issuer or any of its subsidiaries. (D) the authorized Securities conform in all material respects to the description thereof contained in the Prospectus; (E) the Indenture has been duly authorized, executed and delivered by the Corporation that Issuer, has been duly qualified under the Trust Indenture Act and constitutes a valid and binding instrument enforceable against the Issuer in accordance with its terms (subject to applicable bankruptcy, reorganization, insolvency, fraudulent transfer, moratorium or other similar laws affecting creditors' rights generally from time to time in effect and 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 by resolutions of the Board of Directors of the Issuer for issuance for a period beginning on the effective date of the Registration Statement and ending upon sale of all Securities authorized thereunder (the "Period"), subject to the establishment of certain terms of the Securities by officers of the Issuer authorized by such resolutions to establish such terms, and, when the terms of any such Security have been established as provided in such resolutions and in the Indenture and such has been executed and authenticated during such period in accordance with the provisions of the Indenture and delivered to and paid for by the purchaser thereof in accordance with the terms of this Agreement, each such Security, assuming it does not violate any applicable law then binding on the Issuer, will constitute a valid and binding obligation of the Issuer entitled to the benefits of the Indenture; (F) the Registration Statement and any amendments thereto have become effective under the Act, and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, has been issued, and no proceedings for that purpose have been instituted or threatened; (G) this Agreement has been duly authorized, executed and delivered by the Time Issuer; and (H) no consent, approval, authorization or order of Sale Prospectus any United States Federal or New York governmental agency or regulatory body is required for the Prospectusconsummation of the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the issue and sale of the Securities and such other approvals (specified in such opinion) as have been obtained. (ii) such opining counsel shall also furnish a letter, dated the Closing Date, that shall state that such counsel has no reason to believe that: (A) the Registration Statement or any amendment or supplement thereto, thereof at the time it was required to be delivered to a purchaser of the Notes, 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, or that the Prospectus, as amended or supplemented, includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such timeunder which they were made, not misleading; misleading (in each case, except for the financial statements and other information of an accounting or financial nature included therein, and the Statement of Eligibility (3) subsequent Form T-1), included as an exhibit to the respective dates as of which information is given in the Registration Statement, as to which such counsel need express no view); and (B) the Time of Sale Prospectus Registration Statement and the Prospectus, there shall not have been any material adverse change in Prospectus as amended or supplemented (except the financial positionstatements and other information of an accounting or financial nature included therein, results and the Statement of operationEligibility (Form T-1), business affairs or business prospects included as an exhibit to the Registration Statement, as to which such counsel need express no view), were not appropriately responsive in all material respects to the requirements of the Corporation or Act and the financial, political or economic conditions or Trust Indenture Act and the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus;applicable rules and regulations thereunder. (be) At the Time of Delivery Closing Date, the Manager Agents shall have received: (1) A certificate or certificatesreceived a certificate, dated as of such timethe Closing Date, signed by the Chief Executive of the Corporation in respect of the Corporation President or any Vice President, and by the Treasurer, Controller, or Secretary or any Assistant Treasurer, Assistant Controller or Assistant Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, Issuer in which such personsofficers, to the best of their knowledge after reasonable investigation, shall state that (i) the representations and warranties of the Corporation and the Guarantor Issuer in this Agreement are true and correct, that (ii) the Corporation and the Guarantor have Issuer has complied with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to such timethe Closing Date, that (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 threatened by the Commission Commission, and that, (iv) subsequent to the respective dates as date of which information is given the most recent financial statements in the Registration Statement, the Prospectus and, if applicable, the Time of Sale Prospectus with respect to the NotesProspectus, there has been no material adverse change in the financial position, position or results of operation, business affairs or business prospects operations of the Corporation or the financialIssuer and its subsidiaries, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or as described in such certificate. (f) At the ProspectusClosing Date, the Agents shall have received a letter, dated such date, of PricewaterhouseCoopers LLP ("PWC"), confirming that they are independent public accountants within the meaning of the Act and the Exchange Act and the respective applicable published Rules and Regulations thereunder, that the response, if any, to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that: (i) in their opinion, the audited financial statements and schedules thereto included or incorporated in the Registration Statement and Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the related published Rules and Regulations thereunder with respect to financial statements and financial statement schedules included or incorporated in annual reports on Form 10-K under the Exchange Act; (2ii) An opinion, dated as on the basis of such time, a reading of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation unaudited financial statements included or incorporated in the Registration Statement and Prospectus and of the Guarantor, or such other counsel satisfactory to latest unaudited financial statements made available by the Manager receiving such opinion, Issuer and its subsidiaries; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the Corporation being duly constituted, the validity comments set forth in such letter; a reading of the Notes minutes of the Board of Directors of the Issuer and the Guarantee Pricing Committee appointed by the Board of Directors of the Notes by Issuer, IF ANY; and inquiries of certain officials of the Guarantor, Issuer who have responsibility for financial and accounting matters as to transactions and events subsequent to the date of the most recent financial statements included or incorporated in the Registration Statement, Statement and the Prospectus, nothing came to their attention that caused them to believe that: (A) any unaudited financial statements included or incorporated in the Time Registration Statement and Prospectus do not comply as to form in all material respects with applicable accounting requirements and with the published rules and regulations of Sale Prospectus (if applicable) and other related matters as they may require the Commission with respect to matters governed financial statements included or incorporated in quarterly reports on Form 10-Q under the Exchange Act; or said unaudited financial statements are not fairly presented (except as permitted by New South Wales Form 10-Q) in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated in the Registration Statement and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such mattersProspectus; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law;or (3B) An opinion any unaudited capsule information included or incorporated in the Registration Statement and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to Prospectus does not agree with the Corporation and amounts set forth in the Guarantor, unaudited consolidated financial statements from which it was derived or such other counsel satisfactory to the Manager receiving such opinion and letter, was not determined on a basis substantially consistent with respect to the validity under the laws of New York and the United States of America that of the Notes and the Guarantee of the Notes by the Guarantor, audited financial statements included or incorporated in the Registration Statement, the Statement and Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their opinion, Xxxxxxxx & Xxxxxxxx may rely on the opinions of the Mallesons Xxxxxxx Xxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by New South Wales and Australian law; (4) An opinion and negative assurance letter, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to such matters as the Manager receiving such opinion may reasonably request, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters; and (5iii) From they have performed certain other procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the Auditor General general accounting records of the State of New South Wales, or any successor independent auditor, a letter, dated as of such time, and delivered at such time, substantially Issuer) set forth in the form attached hereto as Annex A. (c) 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 or the Australian Stock Exchange; (ii) a general moratorium on commercial banking activities (A) in New York declared by either U.S. federal or New York State regulatory authorities or (B) in Australia declared by the Australian regulatory authorities or a material disruption in commercial banking or securities settlement or clearance systems in the United States or Australia; (iii) any outbreak or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any declaration of a national emergency or war by either of such countries, or any other calamity or crisis or materially adverse change in general economic, political or financial conditions having an effect on the U.S. or Australian financial markets; (iv) any downgrading in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse effect on the holders of the Notes, which in the case of any of the events described in clauses (i) through (iv) above, individually or in the aggregate, in the sole judgment of the Manager, makes it impracticable or inadvisable to proceed with the consummation of the purchase of Notes by the Underwriters for sale to others on the terms and in the manner contemplated in the Time of Sale Prospectus Registration Statement and the Prospectus, each as then amended including the information included or supplemented. (d) At the Time of Delivery, the Underwriters shall have been furnished with such documents incorporated in Items 1 and opinions as they may reasonably require in order to evidence the accuracy and completeness of any 7 of the representations Issuer's Annual Report on Form 10-K incorporated therein or in "Management's Discussion and warranties, or the fulfillment Analysis of any of the conditions, herein contained; Financial Condition and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Manager by notice to the Corporation at any time at or prior to the Time of Delivery and such termination shall be without liability of any party to any other party, except that the provisions of Section 5 hereof, the indemnity and contribution agreements set forth in Section 7 and 8 hereof, and the provisions of Section 10, 13 and 16 hereof shall remain in effect.Results

Appears in 1 contract

Samples: Agency Agreement (International Business Machines Corp)

Conditions of Obligations. The Your several obligations of each Underwriter hereunder to solicit offers to purchase the Notes Offered Securities as Agent(s) and your obligations to be delivered at the Time of Delivery purchase Offered Securities pursuant to any Terms Agreement or otherwise will be subject to the accuracy of the representations and warranties on the part of the Corporation and the Guarantor herein contained as of the date hereof and as of the Time of DeliveryCompany herein, to the accuracy of the statements of any duly authorized officer or official of the Corporation and the Guarantor Company's officers made in any each certificate furnished pursuant to the provisions of Section 6(b)(1)hereof, to the performance and observance by the Corporation and the Guarantor Company of all their respective covenants and other obligations hereunder agreements herein contained on its part to be performed and observed and to the following further conditionsadditional conditions precedent: (1a) No stop At and subsequent to the date hereof and at each Closing Time no stop-order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued under and remain outstanding and no proceedings for that purpose shall have been instituted or, to your knowledge or the Act knowledge of the Company, threatened or proceedings therefor initiated or threatened contemplated by the Commission; . (2b) At the date hereof and at each Closing Time if called for by the applicable Terms Agreement, each of you (or, with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) shall have received an opinion or opinions, dated, as applicable, either the date hereof or such Closing Time, of one or more counsels for the Company acceptable to the Agents (it being understood that the opinion of the General Counsel and/or Vice President, Legal of the Company shall be acceptable to the Agents unless otherwise provided in the Terms Agreement), substantially identical to the proposed form of their opinions heretofore delivered to each of you. (i) At the date hereof and at each Closing Time, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus (except as set forth in or contemplated by the Registration Statement and the Prospectus), the Company shall not have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions not in the ordinary course of business, nor shall there have been any material decrease in the stockholders' equity or any material increase in the long-term debt of the Company or any material adverse change in the condition, financial or otherwise, or in the earnings, affairs or business prospects of the Company, whether or not arising in the ordinary course of business. (ii) At the date hereof and at each Closing Time if called for by the applicable Terms Agreement, each of you (or, with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) shall have received a certificate, dated, as applicable, the date hereof or such Closing Time, signed by the officers of the Company specified in Section 4(g), certifying that, to the best of their knowledge after reasonable investigation, the statements made in the immediately preceding paragraph (i) are accurate and to the effect that (A) no Underwriter stop- order suspending the effectiveness of the Registration Statement has been issued, and no proceedings for that purpose have been instituted or, to the knowledge of such officers, are threatened or contemplated by the Commission, (B) the Registration Statement and the Prospectus conform in all material respects to the requirements of the Act, the Trust Indenture Act and the Rules and Regulations, (C) neither the Registration Statement nor the Prospectus contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the foregoing does not apply to (i) statements or omissions in the Registration Statement or the Prospectus made in reliance upon information furnished in writing to the Company by any of you or on your behalf or on behalf of any of the Trustees expressly for use therein or (ii) that part of the Registration Statement that constitutes the Statement of Eligibility under the Trust Indenture Act on Form T-1 of any Trustee, except statements or omissions in such Statement made in reliance upon information furnished in writing to such Trustee by or on behalf of the Company for use therein, and (D) the representations and warranties of the Company included in Sections 2(a) through 2(g) are, as of the Closing Time, accurate in all material respects and the Company has performed and observed all covenants and agreements herein contained on its part to be performed and observed prior to the Closing Time. (d) At the date hereof, and at each Closing Time if called for by the applicable Terms Agreement, each of you (or, with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) shall have been advised received a letter, dated as of the Closing Time, signed by the Corporation Accountants, substantially identical to the proposed form of such letter heretofore delivered to each of you. (e) At the date hereof and at each Closing Time if called for by the applicable Terms Agreement, each of you (or with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) shall have received an opinion, dated such date, of Skadden, Arps, Slate, Xxxxxxx and Xxxx LLP, or other counsel selected by the Agents, with respect to the Company, the Offered Securities, the Registration Statement, including the form of final prospectus included therein, this Agreement and the form and sufficiency of all proceedings taken in connection with the authorization, sale and delivery of the Offered Securities, all of which shall be satisfactory in all respects to you, and the Company shall have furnished to your counsel such documents as such counsel may reasonably request for the purpose of enabling them to render such opinion. (f) At the date hereof and at each Closing Time if called for by the applicable Terms Agreement, the Company shall have furnished to each of Sale Prospectus or the Prospectusyou (or, with respect to a Closing Time called for by any Terms Agreement, each of you that is a party to such Terms Agreement) such further information and documents as you may have reasonably requested. (g) There shall not have occurred any change, or any amendment development involving a prospective change, involving currency exchange rates, exchange controls, taxation or supplement theretosimilar matters that in your respective judgments makes it impracticable or inadvisable to proceed with your solicitation of offers to purchase the Offered Securities denominated in the affected currency or currencies, or your purchase of such Offered Securities from the Company as principal; provided, however, that any such change or development shall not affect your respective obligations with respect to Offered Securities denominated in any currency not so affected. Your respective obligations to purchase Offered Securities pursuant to any Terms Agreement (or as contemplated by the last sentence of Section 3(b) hereof) will be subject to the following further conditions: (a) the rating assigned by any nationally recognized securities rating agency to any debt securities of the Company as of the date of the applicable Terms Agreement shall not have been lowered since that date nor shall any such organization have publicly announced that it has under surveillance or review, with possible negative implications, its ratings of any debt securities of the Company and (b) there shall not have come to your attention any facts that would cause you to believe that the Prospectus, at the time it was required to be delivered to a purchaser of the NotesOffered Securities, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading; and (3) subsequent to the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there shall not have been any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (b) At the Time of Delivery the Manager shall have received: (1) A certificate or certificates, dated as of such time, signed by the Chief Executive of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that 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 and that, subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus and, if applicable, the Time of Sale Prospectus with respect to the Notes, there has been no material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (2) An opinion, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion, with respect to the Corporation being duly constituted, the validity of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may require, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their opinion, Xxxxxxxx & Xxxxxxxx may rely on the opinions of the Mallesons Xxxxxxx Xxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by New South Wales and Australian law; (4) An opinion and negative assurance letter, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to such matters as the Manager receiving such opinion may reasonably request, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters; and (5) From the Auditor General of the State of New South Wales, or any successor independent auditor, a letter, dated as of such time, and delivered at such time, substantially in the form attached hereto as Annex A. (c) 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 or the Australian Stock Exchange; (ii) a general moratorium on commercial banking activities (A) in New York declared by either U.S. federal or New York State regulatory authorities or (B) in Australia declared by the Australian regulatory authorities or a material disruption in commercial banking or securities settlement or clearance systems in the United States or Australia; (iii) any outbreak or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any declaration of a national emergency or war by either of such countries, or any other calamity or crisis or materially adverse change in general economic, political or financial conditions having an effect on the U.S. or Australian financial markets; (iv) any downgrading in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse effect on the holders of the Notes, which in the case of any of the events described in clauses (i) through (iv) above, individually or in the aggregate, in the sole judgment of the Manager, makes it impracticable or inadvisable to proceed with the consummation of the purchase of Notes by the Underwriters for sale to others on the terms and in the manner contemplated in the Time of Sale Prospectus and the Prospectus, each as then amended or supplemented. (d) At the Time of Delivery, the Underwriters shall have been furnished with such documents and opinions as they may reasonably require in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Manager by notice to the Corporation at any time at or prior to the Time of Delivery and such termination shall be without liability of any party to any other party, except that the provisions of Section 5 hereof, the indemnity and contribution agreements set forth in Section 7 and 8 hereof, and the provisions of Section 10, 13 and 16 hereof shall remain in effect.

Appears in 1 contract

Samples: Distribution Agreement (PHH Corp)

Conditions of Obligations. The obligations obligation of each Underwriter hereunder any Agent, as agent of the Company, at any time ("Solicitation Time") to solicit offers to purchase the Notes Securities and the obligation of any Agent to purchase Securities as principal, pursuant to any Terms Agreement or otherwise, shall in each case be delivered at the Time of Delivery will be subject subject, in such Agent's discretion, to the accuracy of the condition that all representations and warranties on the part and other statements of the Corporation Company herein (and, in the case of an obligation of an Agent under a Terms Agreement, in or incorporated in such Terms Agreement by reference) are true and the Guarantor herein contained as of the date hereof correct at and as of the Commencement Date and at and as of such Solicitation Time or Time of Delivery, as the case may be, the condition that prior to such Solicitation Time or Time of Delivery, as the accuracy case may be, the Company shall have performed all of the statements of any duly authorized officer or official of the Corporation its obligations hereunder theretofore to be performed, and the Guarantor made in any certificate furnished pursuant to the provisions of Section 6(b)(1), to the performance and observance by the Corporation and the Guarantor of all their respective covenants and other obligations hereunder and to the following further additional conditions: (1i) No With respect to any Securities sold at or prior to such Solicitation Time or Time of Delivery, as the case may be, the Prospectus as amended or supplemented (including the Pricing Supplement) with respect to such 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 4(a) hereof; (ii) no stop order suspending the effectiveness of any part of the Registration Statement or any part thereof shall have been issued under the Act or proceedings therefor and no proceeding for that purpose shall have been initiated or threatened by the Commission; and (2iii) no Underwriter all requests for additional information on the part of the Commission shall have been advised by the Corporation that the Registration Statement, the Time of Sale Prospectus or the Prospectus, or any amendment or supplement thereto, at the time it was required to be delivered to a purchaser of the Notes, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading; and (3) subsequent complied with to the respective dates as reasonable satisfaction of which information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there shall not have been any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus;such Agent. (b) At the Time Commencement Date and, if specified in a Terms Agreement, at the time of Delivery delivery of the Manager Securities described in such Terms Agreement, such Agent shall have received: (1) A certificate or certificatesan opinion, dated the Commencement Date, or such date of delivery, as the case may be, of Xxxxxxx X. Xxxxx, Esq., Assistant General Counsel for the Company, to the effect set forth in Annex III hereto; and (2) an opinion, dated the Commencement Date, or such timedate of delivery, signed by as the Chief Executive case may be, of Xxxxx Xxxx & Xxxxxxxx, counsel for the Company, to the effect set forth in Annex IV hereto. (c) At the Commencement Date and, if specified in a Terms Agreement, at the time of delivery of the Corporation Securities described in respect such Terms Agreement, such Agent shall have received a certificate, dated the Commencement Date or such date of delivery, as the case may be, of the Corporation President or any Vice President and by the Secretary a principal financial or accounting officer of the Treasury of the Government of New South Wales in respect of the Guarantor, Company in which such personsofficers, to the best of their knowledge, shall state that (i) the representations and warranties of the Corporation and the Guarantor Company in this Agreement are true and correct, that (ii) the Corporation and the Guarantor have Company has complied with all agreements and satisfied all conditions on their its part to be performed or satisfied hereunder at or prior to the Commencement Date or such timedate of delivery, that as the case may be, (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 Commission, and that, (iv) subsequent to the respective dates as date of which information is given the most recent financial statements in the Registration Statement, the Prospectus and, if applicable, the Time of Sale Prospectus with respect to the NotesProspectus, there has been no material adverse change change, nor any development or event involving a prospective material adverse change, in the condition (financial positionor otherwise), business, properties or results of operation, business affairs or business prospects operations of the Corporation or the financialCompany and its subsidiaries taken as a whole, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time Prospectus or as described in such certificate. In the case of Sale each such certificate delivered pursuant to a Terms Agreement, the statements contained in such certificate relating to the Registration Statement or the Prospectus shall relate to the Registration Statement or the Prospectus;, as the case may be, as amended or supplemented as of the date of the Company's acceptance of the offer to purchase such Securities and as of the time of delivery of such Securities. (2d) An opinionAt the Commencement Date and on each date the Company files with the Commission an Annual Report on Form 10-K or a Quarterly Report on Form 10-Q, such Agent shall have received a letter, dated the Commencement Date or such date of filing or delivery, as of such timethe case may be, of Mallesons Xxxxxxx XxxxxxPricewaterhouseCoopers LLP, Australian counsel confirming that they are independent public accountants within the meaning of the Act and the applicable pub lished rules and regulations thereunder and stating to the Corporation and effect set forth in Annex V hereto. (e) At the GuarantorCommencement Date, the Agents shall have received from Xxxxxxxx & Xxxxxxxx, counsel for the Agents, such opinion or such other counsel satisfactory to opinions, dated the Manager receiving such opinionCommencement Date, with respect to the Corporation being duly constitutedincorporation of the Company, the validity of the Notes and the Guarantee of the Notes by the GuarantorSecurities, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they the Agents may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may reasonably require, and the Corporation and the Guarantor shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their opinion, Xxxxxxxx & Xxxxxxxx may rely on the opinions of the Mallesons Xxxxxxx Xxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by New South Wales and Australian law; (4) An opinion and negative assurance letter, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to such matters as the Manager receiving such opinion may reasonably request, and the Corporation and the Guarantor Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters; and. (5f) From The Company shall have furnished to the Auditor General Agents or their counsel such further certificates and documents as the Agents or such counsel reasonably request. (i) Neither the Company nor any of its subsid iaries shall have sustained since the date of the State latest audited financial statements included or incorporated by reference in the Prospectus as amended or supplemented prior to the date of New South Walesthe Pricing Supplement relating to the Securities to be delivered at the relevant Time of Delivery 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 Prospectus as amended or supplemented prior to the date of the Pricing Supplement relating to the Securities to be delivered at the relevant Time of Delivery and (ii) since the respective dates as of which information is given in the Prospectus as amended or supplemented prior to the date of the Pricing Supplement relating to the Securities to be delivered at the relevant Time of Delivery 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 successor independent auditorchange, or any development involving a letterprospective change, dated 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 Prospectus as amended or supplemented prior to the date of the Pricing Supplement relating to the Securities to be delivered at the relevant Time of Delivery, the effect of which, in any such case described in clause (i) or (ii), is in the judgment of such timeAgent so material and adverse as to make it impracticable or inadvisable to proceed with the solicitation by such Agent of offers to purchase Securities from the Company or the purchase by such Agent of Securities from the Company as principal, as the case may be, on the terms and in the manner contemplated in the Prospectus as amended or supplemented prior to the date of the Pricing Supplement relating to the Securities to be delivered at such time, substantially in the form attached hereto as Annex A.relevant Time of Delivery; (ch) 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 or the Australian Stock Exchange; (ii) a general moratorium on commercial banking activities (A) in New York declared by either U.S. federal Federal or New York State regulatory authorities authorities; (iii) the outbreak or (B) in Australia declared by the Australian regulatory authorities or a material disruption in commercial banking or securities settlement or clearance systems in escalation of hostilities involving the United States or Australia; (iii) any outbreak or escalation of hostilities, other insurrections or armed conflict in which the declaration by the United States of America or the Commonwealth of Australia is involved or any declaration of a national emergency or war by either war, if the effect of any such event specified in this clause (iii) in the judgment of such countries, or any other calamity or crisis or materially adverse change in general economic, political or financial conditions having an effect on the U.S. or Australian financial markets; (iv) any downgrading in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse effect on the holders of the Notes, which in the case of any of the events described in clauses (i) through (iv) above, individually or in the aggregate, in the sole judgment of the Manager, Agent makes it impracticable or inadvisable to proceed with the consummation solicitation of offers to purchase Securities or the purchase by such Agent of Notes by Securities from the Underwriters for sale Company as principal, pursuant to others the applicable Terms Agreement or otherwise, as the case may be, on the terms and in the manner contemplated in the Time of Sale Prospectus and the Prospectus, each as then amended or supplemented. ; or (div) At (x) any downgrading in the Time rating accorded the Company's debt securities by any "nationally recognized statistical rating organization", as that term is defined by the Commission for purposes of Delivery, Rule 436(g)(2) under the Underwriters Act or (y) any such organization shall have been furnished publicly announced that it has under surveillance or review, with such documents and opinions as they may reasonably require in order to evidence the accuracy and completeness possible negative implications, its rating of any of the representations and warrantiesCompany's debt securities; and (i) With respect to any Security denominated in a currency other than the U.S. dollar, more than one currency or a composite currency or any Security the principal or interest of which is indexed to such currency, currencies or composite currency, there shall not have occurred a suspension or material limitation in foreign exchange trading in such currency, currencies or composite currency by a major international bank, a general moratorium on commercial banking activities in the country or countries issuing such currency, currencies or composite currency, the outbreak or escalation of hostilities involving, the financial, political or economic conditions of, or the fulfillment declaration of any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition specified in this Section 6 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Manager by notice to the Corporation at any time at war or prior to the Time of Delivery and such termination shall be without liability of any party to any other party, except that the provisions of Section 5 hereofa national emergency by, the indemnity country or countries issuing such currency, currencies or composite currency or the imposition or proposal of exchange controls by any governmental authority in the country or countries issuing such currency, currencies or composite currency. The Company will furnish the Agents with such conformed copies of such opinions, certificates, letters and contribution agreements set forth in Section 7 and 8 hereof, and the provisions of Section 10, 13 and 16 hereof shall remain in effectdocuments as they reasonably request.

Appears in 1 contract

Samples: Distribution Agreement (Pitney Bowes Credit Corp)

Conditions of Obligations. The obligations obligation of each Underwriter hereunder the Agents, as agents of the Company, under this Agreement to solicit offers to purchase the Notes Securities, as well as the obligation of each Agent to be delivered at the Time of Delivery will be purchase Securities pursuant to any Terms Agreement or otherwise, is subject to the accuracy of the representations and warranties on the part of the Corporation and the Guarantor herein Company contained as of the date hereof and as of the Time of Deliveryherein, to the accuracy of the statements of any duly authorized officer or official of the Corporation and the Guarantor Company’s officers made in any certificate furnished pursuant to the provisions of Section 6(b)(1)hereof to the extent then relevant, to the performance and observance by the Corporation and the Guarantor Company in all material respects of all their respective covenants and other its obligations hereunder hereunder, and to each of the following further additional terms and conditions: (1a) No stop order suspending the effectiveness of the Registration Statement Statement, or any part thereof thereof, nor any order directed to any document incorporated by reference in the Prospectus or the Disclosure Package shall have been issued under the Act or proceedings therefor and no stop order proceeding shall have been initiated or threatened by the Commission; (2) Commission and no Underwriter shall have been advised challenge by the Corporation that Commission shall be pending to the accuracy or adequacy of Registration Statement, the Time of Sale Prospectus or the Prospectus, Disclosure Package or any amendment or supplement thereto, at document incorporated by reference in the time it was required to be delivered to a purchaser foregoing documents; any request of the Notes, contained an untrue statement Commission for inclusion 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 existing at such time, not misleading; and (3) subsequent to the respective dates as of which additional information is given in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there shall not have been any material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus; (b) At the Time of Delivery the Manager shall have received: (1) A certificate or certificates, dated as of such time, signed by the Chief Executive of the Corporation in respect of the Corporation and by the Secretary of the Treasury of the Government of New South Wales in respect of the Guarantor, in which such persons, shall state that the representations and warranties of the Corporation and the Guarantor in this Agreement are true and correct, that the Corporation and the Guarantor have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such time, that 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 and that, subsequent to the respective dates as of which information is given in the Registration Statement, the Prospectus and, if applicableor the Disclosure Package or otherwise shall have been withdrawn or complied with; and after the date of any Terms Agreement (and prior to the Settlement Date for the Securities referred to therein) the Company shall not have filed with the Commission any amendment or supplement to the Registration Statement, the Time of Sale Prospectus with respect to the Notes, there has been no material adverse change in the financial position, results of operation, business affairs or business prospects of the Corporation or the financial, political or economic conditions or the financial or economic prospects of the Guarantor except as set forth in or contemplated by the Time of Sale Prospectus or the Prospectus;Disclosure Package (or any document incorporated by reference in the foregoing documents) without the consent of the Agent or Agents party thereto. (2b) An opinionNo order suspending the sale of the Securities in any jurisdiction designated by an Agent pursuant to Section 3(l) hereof shall have been issued, and no proceeding for that purpose shall have been initiated or threatened. (c) The Agents shall not have discovered and disclosed to the Company that the Registration Statement, the Prospectus or the Disclosure Package, each as amended or supplemented, contains an untrue statement of a fact which, in the opinion of counsel for the Agents, is material or omits to state a 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. (d) On the Closing Date, the Agents shall have received from Cravath, Swaine & Xxxxx LLP, counsel for the Agents, such opinion and letter, dated as of such time, of Mallesons Xxxxxxx Xxxxxx, Australian counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinionClosing Date, with respect to the Corporation being duly constitutedissuance and sale of the Securities, the validity of the Notes and the Guarantee of the Notes by the GuarantorIndenture, the Registration Statement, the ProspectusProspectus and the Disclosure Package, the Time of Sale Prospectus (if applicable) each as amended or supplemented, and other related matters as they the Agents may require with respect to matters governed by New South Wales and Australian law, and the Corporation and the Guarantor shall have furnished to such counsel such documents as he requests for the purpose of enabling him to pass upon such matters; in rendering such opinions, such counsel may rely on the opinion of Xxxxxxxx & Xxxxxxxx (or other counsel satisfactory to the Manager receiving such opinions) as to all matters governed by United States law; (3) An opinion and disclosure letter, dated as of such time, of Xxxxxxxx & Xxxxxxxx, special U.S. counsel to the Corporation and the Guarantor, or such other counsel satisfactory to the Manager receiving such opinion and letter, with respect to the validity under the laws of New York and the United States of America of the Notes and the Guarantee of the Notes by the Guarantor, the Registration Statement, the Prospectus, the Time of Sale Prospectus (if applicable) and other related matters as they may reasonably require, and the Corporation and the Guarantor Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters; in giving their . (e) On the Closing Date, the Agents shall have received the opinion, Xxxxxxxx & Xxxxxxxx may rely on addressed to the opinions Agents and dated the Closing Date, of Xxxx Xxx List, Esq., General Counsel of the Mallesons Xxxxxxx Xxxxxx (or other counsel Company, in form and scope satisfactory to the Manager receiving such opinions) as Agents and their counsel, substantially to all matters governed by New South Wales and Australian law;the effect set forth in Exhibit D hereto. (4f) An opinion and negative assurance letterOn the Closing Date, dated as of such time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx, U.S. counsel to the Underwriters, or such other counsel satisfactory to Agents shall have received the Manager receiving such opinion and letter, with respect addressed to such matters as the Manager receiving such Agents and dated the Closing Date, of Xxxxx and Xxxxxxx LLP, counsel to the Company, which opinion may reasonably requestand letter shall be satisfactory in form and scope to counsel for the Agents, substantially to the effect set forth in Exhibit E-1 and the Corporation and the Guarantor Exhibit E-2 hereto. (g) The Company shall have furnished to the Agents on the Closing Date a certificate, dated the Closing Date, of its President, Chief Executive Officer, Vice President or Chief Financial Officer stating that: (i) the representations, warranties and agreements of the Company in Section 1 hereof are true and correct as of such counsel Closing Date; the Company has complied in all material respects with all its agreements contained herein; and the conditions set forth in Sections 5(a) and 5(b) hereof have been fulfilled, (ii) in his opinion, as of the effective date of the Registration Statement, the Registration Statement did not contain an untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, as of the Applicable Time, the Disclosure Package did not contain an untrue statement of a material fact and did not 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, and the Prospectus as of its date and as of the Closing Date did not contain an untrue statement of a material fact and did not 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, (iii) since the respective dates as of which information is given in the Registration Statement, the Prospectus and the Disclosure Package, as amended or supplemented, there has not been any material adverse change in the condition, financial or other, or earnings of the Company, whether or not arising from transactions in the ordinary course of business, (iv) since the effective date of the Registration Statement, no event has occurred which should have been set forth in an amendment or supplement to the Prospectus but which has not been so set forth or incorporated by reference therein, (v) the Company has no material contingent obligations which are required to be disclosed in the Registration Statement, the Prospectus or the Disclosure Package and are not disclosed therein, (vi) no stop order suspending the effectiveness of the Registration Statement is in effect on such documents as they reasonably request Closing Date and no proceedings for the purpose issuance of enabling them such an order have been taken or to pass upon the knowledge of the Company are contemplated by the Commission on or prior to such matters; andClosing Date, (vii) there are no material legal proceedings to which the Company is a party or of which property of the Company is the subject which are required to be disclosed in the Registration Statement, the Prospectus or the Disclosure Package and are not disclosed therein and (viii) there are no material contracts to which the Company is a party which are required to be disclosed in the Registration Statement, the Prospectus or the Disclosure Package and are not disclosed therein. (5h) From Deloitte and Touche LLP (or successor independent public accountants with respect to the Auditor General Company within the meaning of the State of New South WalesSecurities Act and the rules and regulations thereunder) shall have furnished to the Agents, at or any successor independent auditorprior to the Closing Date, a letter, addressed to the Agents and dated as the Closing Date, confirming that they are independent public accountants with respect to the Company within the meaning of such time, the Securities Act and delivered at such timeare in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, substantially to the effect set forth in the form attached hereto as Annex A.Exhibit F hereto. (ci) There shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities of the Company or generally on the The New York Stock Exchange or the Australian Stock Exchange; , (ii) a general banking moratorium on commercial banking activities (A) in New York declared by either U.S. federal Federal or New York State regulatory authorities state authorities, (iii) any outbreak of hostilities involving the United States, any escalation of hostilities involving the United States, any attack on the United States or any act of terrorism in which the United States is involved, (Biv) in Australia declared by the Australian regulatory authorities or a material any major disruption in commercial banking or the settlement of securities settlement or clearance systems in the United States or Australia; (iii) any outbreak other relevant jurisdiction or escalation of hostilities, other insurrections or armed conflict in which the United States of America or the Commonwealth of Australia is involved or any a declaration of a national emergency or war by either of the United States or (v) such countries, or any other calamity or crisis or materially a material adverse change in general economic, political or financial conditions having an domestically or internationally (or the effect of international conditions on the U.S. or Australian financial markets; (iv) any downgrading markets in the rating of any debt securities of the Corporation or the Guarantor by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act); or (v) any amendment to the laws, regulations or published tax rulings of the United States or Australia which could reasonably be expected to have a material adverse the effect on the holders of the Notes, which conditions in the United States on international financial markets shall be such) the effect of which is, in any case of any of the events described in clauses (i) through clause (iv) above, individually or in the aggregate(v), in the sole judgment of the ManagerPurchasing Agent, makes to make it impracticable or inadvisable to proceed with the consummation solicitation of offers to purchase or the purchase or delivery of the purchase of Notes by the Underwriters for sale to others Securities on the terms and in the manner contemplated in the Time Prospectus; provided, however, that in the event that any Agent agrees to purchase Securities as a principal (whether pursuant to a Terms Agreement or otherwise) there shall not have occurred any of Sale Prospectus and the Prospectus, each as then amended or supplementedforegoing subsequent to the date of such agreement. (dj) At Prior to the Time of DeliveryClosing Date, the Underwriters Company shall have been furnished to the Agents and to Cravath, Swaine & Xxxxx LLP, counsel to the Agents, such further certificates and documents as the Agents or counsel to the Agents may have reasonably requested prior to the Closing Date. (k) Subsequent to the execution of any Terms Agreement and prior to the Settlement Date: (i) no downgrading shall have occurred in the rating accorded the Company’s debt securities by any “nationally recognized statistical rating organization”, as that term is defined by the Commission for the purposes of Rule 436(g)(2) of the Securities Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, with such documents and opinions as they may reasonably require in order to evidence the accuracy and completeness possible negative implications, its rating of any of the representations and warranties, or the fulfillment of Company’s debt securities. If any of the conditions, herein contained; and all proceedings taken by the Corporation and the Guarantor in connection with the issuance and sale of the Notes as herein contemplated shall be satisfactory in form and substance to the Underwriters. If any condition conditions specified in this Section 6 5 shall not have been fulfilled when and as required by this Agreement to be fulfilled, this Agreement (or applicable Terms Agreement) and all obligations of any Agent hereunder (or thereunder) may be terminated canceled by the Manager by notice to the Corporation such Agent on, or at any time at prior to, any Closing Date (or prior Settlement Date related to such Terms Agreement). Notice of such cancellation shall be given to the Time of Delivery Company in writing, or by facsimile, telephone or telex confirmed in writing. All opinions, letters, evidence and such termination certificates mentioned above or elsewhere in this Agreement shall be without liability of any party deemed to any other party, except that be in compliance with the provisions hereof only if they are on the date of Section 5 hereof, delivery in the indemnity form and contribution agreements set forth in Section 7 and 8 hereof, and scope satisfactory to counsel for the provisions of Section 10, 13 and 16 hereof shall remain in effectAgents.

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Samples: Agency Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)